James E. v. Berryhill
James E. v. Berryhill
Opinion of the Court
Plaintiff, now 49 years old, suffers from degenerative disc disease, diabetic peripheral neuropathy, and psychological problems. He uses a cane, and allegedly has "daily episodes of falling" caused by weakness in his legs and an abnormal gait. Dkt. # 16 at 2. In 2013, he filed for disability benefits.
This conclusion is based on plaintiff's first, and strongest, argument. It is directed at the ALJ's finding that plaintiff did not meet or equal Listing 11.14 ("Peripheral neuropathies."). This is a narrow argument, and it can be addressed in relatively short order without delving into the specific listing requirements. Plaintiff argues that the ALJ "played doctor" in analyzing this particular listing.
*702finding of medical equivalence requires an expert's opinion on the issue." Minnick v. Colvin ,
In its response, the Government attempts to navigate around this case law by raising a novel and technical argument. The Government concedes that the State agency doctors did not address listing 11.14 on the form entitled "Disability Determination Explanation" (the "Explanation form").
The Court is not persuaded by this argument. As for legal authority, the Government ignores the two Seventh Circuit cases cited by plaintiff- Minnick and Barnett -and relies instead on an earlier Seventh Circuit case- Scheck v. Barnhart ,
As a matter of policy, the Government makes the slippery slope argument that it would be impractical for Agency doctors, on the Explanation form, to "identify every listing a claimant does not meet." Id. at 5 (emphasis added). But this argument is a red herring. Plaintiff is not suggesting that agency doctors must rotely go through every single listing no matter how implausible. Rather, plaintiff is arguing that, specifically for this one listing (11.14), there was enough evidence to make a colorable argument that it might apply, which in turn meant that a medical opinion was *703needed.
Having concluded that a remand is required, this Court will not address plaintiff's remaining arguments for several reasons.
A final note. One unfortunate but recurring aspect in disability appeals brought to this Court is that arguments raised here often were not raised during the administrative hearing even though they could have been raised there. This is true in this case as well. Plaintiff's counsel submitted a three-page pre-hearing brief to the ALJ; participated in the administrative hearing; and then submitted a two-page brief to the Appeals Council. See Exs. 12E, 14E. But counsel failed to raise several arguments now raised here. For example, counsel never argued that plaintiff met listings 1.04 or 11.14 and never requested that a medical expert be called to address any technical questions. Counsel also now complains here that the ALJ failed to pose proper hypothetical questions to the vocational expert at the hearing, but counsel was allowed to question this same witness and did not bring up these concerns at that time. The Government has not argued that these arguments have been waived, and the Court is not aware of grounds for making such an argument. But the Court continues to believe that a waiver doctrine would be both fair and efficient by encouraging counsel to raise these issues during the administrative proceedings. Even if there is no formal waiver doctrine, as a practical matter, counsel's failure to raise arguments in the administrative proceedings raises a question about how significant the alleged errors were. And it also raises concerns about sandbagging. For these reasons, on remand in this case, as well as in future cases, the Court strongly encourages plaintiff's counsel to explicitly and contemporaneously raise any perceived errors so that the ALJ (or Appeals Council) is given the opportunity to address them.
For the above reasons, plaintiff's motion for summary judgment is granted, the *704Government's motion is denied, and the case is remanded for further proceedings.
He previously filed disability applications in 2008, 2009, and 2012. R. 84.
The Court will assume the reader is familiar with the basic Social Security abbreviations and jargon.
The ALJ's specific reasoning was as follows: "Despite having diabetic peripheral neuropathy diagnosed on January 17, 2013, he does not have significant and persistent disorganization of motor function in two extremities, resulting in sustained disturbance of gross and dexterous movements, or gait and station for 11.14, peripheral neuropathies (4F, 19F/32, and 21F/13)." R. 21.
This form contains specific questions the doctors must answer, and the completed forms in this case ranged from 12 to 15 pages, a typical length for such forms.
For example, the relevant code on one of the Transmittal forms is "J1-1520(f)." R. 81.
Plaintiff relies on various pieces of evidence to support this assertion, including the statement from his treating neurologist that plaintiff had "severe generalized polyneuropathy." R. 672.
Plaintiff argues that the ALJ provided a perfunctory analysis of Listing 1.04; failed to engage in a function-by-function analysis of plaintiff's work limitations (this argument contains multiple sub-arguments); failed to include a hypothetical to the vocational expert about plaintiff's moderate limitation in concentration, persistence, or pace; and erred in evaluating plaintiff's credibility (again, multiple sub-arguments).
Reference
- Full Case Name
- JAMES E. v. Nancy A. BERRYHILL, Acting Commissioner of Social Security
- Cited By
- 4 cases
- Status
- Published