Smith v. Colvin
MEMORANDUM Opinion and Order; Plaintiff's motion for summary judgment is granted, the government's motion is denied, and this case is remanded for further considerations. (See attachment for full detail.) Signed by the Honorable Iain D. Johnston on 1/11/2017: (yxp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
Carolyn W. Colvin, Acting
Commissioner of Social Security,
No. 15 CV 50208
Magistrate Judge Iain D. Johnston
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas Smith brings this action under 42 U.S.C. §405(g), challenging the denial
of social security disability benefits.
Plaintiff worked as a welder for a number of years. In late 2013, when he was 41 years
old, he began experiencing pain and numbness on his right side. After an MRI showed
degenerative disc disease, he had spinal surgery (cervical laminoplasty at C3-6), performed by
Dr. Christopher Sliva, in the middle of December 2013. Plaintiff returned to work, but kept
experiencing problems, causing him to stop working in April 2014. On June 9, 2014, Dr. Sliva
operated a second time, performing a cervical discectomy and fusion at C4-5 and C5-6. R. 244.
On June 18, 2014, plaintiff filed his disability insurance application. R. 17.
On March 26, 2015, a hearing was held before the administrative law judge (“ALJ”).
Plaintiff testified that he completed the ninth grade; that he drove a car once a week; that he lived
with his wife and 19-year old son; that his wife worked part-time; that could shower and bathe
himself, although he had trouble washing his hair; that he did some chores around the house such
as sweeping “a little bit” and picking things off the floor. On a typical day, he would “just try to
get comfortable, sit for a little bit, lay down  on and off, get up and move around.” R. 37.
Plaintiff stopped working because he “had pain shooting down [his] right side, and [his]
hand was going numb.” R. 40. He also had neck pain making it hard to move his head left or
right or up or down. This pain emerged after the second surgery. He still had weakness in his
right arm and numbness in his fingers, specifically his thumb and index finger, which prevented
him from grabbing and holding things, which he needed to do on his welding job. When asked if
anything made the pain worse, he stated that the pain “stays about consistent,” which he rated as
5 to 5 and 1/2 on a 10-point scale. The pain woke him up at night and he was only able to sleep
three or four hours. He was seeing a pain specialist, Dr. Vo, who gave him several injections.
Plaintiff was taking Norco three times a day, as well as Lyrica, Cymbalta (antidepressant), and
Ambien (sleep medication). The ALJ asked plaintiff about his hands and arms, and he stated that
he could lift his arms straight overhead but not in a jumping-jack motion. He had no restrictions
on the use of his left arm. He had trouble walking and could only walk a block-and-half without
too much trouble. He stated that he could sit comfortably for about 30 to 45 minutes at a time
and then would experience pain down his right leg and in the back of his neck.
After plaintiff testified, a medical expert, Dr. Sai Nimmagadda, and a vocational expert
(“VE”), Thomas Dunleavy, testified. Relevant portions of their testimony are discussed below.
On April 3, 2015, the ALJ found that plaintiff had the following severe impairments:
“degenerative disc disease of the cervical spine status post laminoplasty, foraminotomy, and
discectomy with fusion, right upper extremity radiculopathy, cervical spine myelopathy, and
cervical spine myloemalacia, and degenerative disc disease of the lumbar spine.” R. 15. The ALJ
found that plaintiff did not meet any listing and that he had the residual functional capacity
(“RFC”) to work several jobs. The ALJ’s rationales are discussed below.
A reviewing court may enter judgment “affirming, modifying, or reversing the decision
of the [Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C.
§ 405(g). If supported by substantial evidence, the Commissioner’s factual findings are
conclusive. Substantial evidence exists if there is enough evidence that would allow a reasonable
mind to determine that the decision’s conclusion is supportable. Richardson v. Perales, 402 U.S.
389, 399-401 (1971). Accordingly, the reviewing court cannot displace the decision by
reconsidering facts or evidence, or by making independent credibility determinations. Elder v.
Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the Seventh Circuit has emphasized that
review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002). A
reviewing court must conduct a critical review of the evidence before affirming the
Commissioner’s decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Even when
adequate record evidence exists to support the Commissioner’s decision, the decision will not be
affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to
the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).
Plaintiff’s opening brief is 23 pages, and contains six major arguments. As is often the
case, the major arguments contain branching sub-arguments, making the total number greater
than six. Also, somewhat confusingly, several arguments re-surface in multiple sections. The net
effect is that plaintiff’s arguments are interconnected and not always easy to discuss in isolation.
After reviewing the briefs, the Court finds that the following arguments justify a remand.
Neck and Finger Problems.
Plaintiff raises two similar arguments directed at specific functional limitations included
the ALJ’s list of RFC limitations. The two at issue are the following: (i) plaintiff could
“frequently finger/feel with the thumb and second finger of the right hand” and (ii) he could
“frequently flex and laterally rotate [his] neck.” R. 16. 1 Plaintiff asserts that he cannot do these
activities “frequently” but only “occasionally” or perhaps not even at all and argues that the ALJ
provided only a vague explanation for his conclusion and improperly “played doctor.” Plaintiff
also complains that the ALJ’s reasoning is further obscured by numerous INAUDIBLE markings
in the hearing transcript.
The Court begins with the finger problems. To briefly summarize, plaintiff complained
about right finger problems when he first visited a doctor sometime around November 2013. R.
267. At the hearing, he testified that he was still suffering from these problems. Dr.
Nimmagadda, testified as follows about plaintiff’s finger and thumb numbness:
Q Okay, because there [are] some physical findings of numbness with the
thumb and the finger, is there support for that in the record?
A I, I – my private feeling is that the involvement of (INAUDIBLE) a
finding, but I couldn’t find any support for that.
Q So, there’s nothing in the diagnostic tests (INAUDIBLE) to support that?
A Correct, so mainly the C5 C6 is up there off the upper part of the arm.
R. 57-58. Then a few pages later in the transcript, he gave what appears to be a second answer,
testifying as follows:
A [R]egarding manipulative limitations, reaching in all directions,
[plaintiff] would be limited to occasionally.
Q With both his shoulders or just one?
A Just, just the right.
Q So, occasionally reach all directions, with the right upper extremity?
Although not discussed in the briefs, the definition of “frequently” in Social Security law is that the limitation
“occurs one-third to two-thirds of an eight-hour workday.” POMS, DI 25001.001 Medical-Vocational Quick
Q No limitations on the left?
A And then handling, fingering, and feeling would all be limited.
R. 60. This answer—that fingering and handling would be “limited”—seems to contradict the
earlier answer that there is nothing to support the allegation of right hand problems.
Unfortunately, neither the ALJ nor plaintiff’s counsel asked any follow-up questions or pointed
out that seemingly divergent answers.
In any event, at the end of his questioning of Dr. Nimmagadda, the ALJ summarized
plaintiff’s RFC limitations in a long list, but left out the limitation on handling and fingering
given in the second answer quoted above. R. 61. This raises a question: was this done
intentionally or by inadvertence?
This uncertainty was not acknowledged nor resolved in the ALJ’s opinion. As noted
above, the ALJ in fact included in the RFC formulation the limitation that plaintiff could
“frequently finger/feel with the thumb and second finger of the right hand.” R. 16. The ALJ
explained why in the section of the opinion assessing the weight given Dr. Nimmagadda’s
testimony. See R. 19 (“I find that Dr. Nimmagadda’s testimony that the claimant would not
possess any handling or fingering limitations is inconsistent with the perpetually diminished
strength and sensation in his right hand, specifically in the thumb and second finger of the right
hand[.]”). As the latter statement suggests, the ALJ overlooked Dr. Nimmagadda’s second
answer from the hearing because no attempt was made to resolve the apparent contradiction. In
addition to this discrepancy, plaintiff also complains that the ALJ did not explain why he chose
this particular limitation (as opposed to one more limiting) and that this conclusion is not
supported by any medical opinion. The Court agrees with these arguments and finds that the
handling of this one issue—starting with the hearing and carrying over into the opinion—
remains clouded with too many unresolved questions. 2
The Government’s main argument is to state that the ALJ included “even more
restrictions in the RFC assessment than recommended by Dr. Nimmagadda.” Dkt. #29 at 7. But
this argument overlooks Dr. Nimmagadda’s second answer at the hearing. It also does not
address the lack of a medically-supported explanation for picking this particular limitation. The
only clue to the ALJ’s thinking is his statement that plaintiff had “perpetually diminished
strength and sensation in his right hand.” R. 19 (emphasis added). This statement, however, is so
general that it could support an array of opinions, including plaintiff’s position that greater hand
limitations were warranted. The Government also argues that plaintiff did not have “significant
problems” fingering or feeling with his right hand because “he engaged in activities, such as
playing video games.” Dkt. #29 at 10. But this argument fails because the ALJ never explicitly
mentioned it as a reason. See Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“the Chenery
doctrine  forbids an agency’s lawyers to defend the agency’s decision on grounds that the
agency itself had not embraced”).
Similar questions exist regarding plaintiff’s neck limitations. At the hearing, Dr.
Nimmagadda testified that he did not find that plaintiff had any neck limitations, either rotating
To add one more question to the mix, the Court is not clear on Dr. Nimmagadda’s explanation given in his first
answer. It is conclusory with no supporting evidence, contains an INAUDIBLE marking, and states that the doctor
was relying on his “private feeling,” a curiously opaque phrase.
side to side, or up and down. 3 Despite this fact, the ALJ later included in one of the hypotheticals
to the VE the limitation that plaintiff would only be able to “frequently flex the neck, and
frequently rotate the neck laterally.” R. 67. The VE concluded that this limitation would not
change his conclusion that plaintiff’s RFC would allow him to work as an assembler, sorter, and
visual inspector. The ALJ then asked whether the VE’s answer would change if the neck
limitations were more severe. Here is this exchange:
Q One other question, if I accept the hypothetical I just gave you, number
two, and the only thing I changed about it is, that I changed the frequently flexing
the neck and frequently rotating the neck bilaterally to occasional, would that
A When you say flexing the neck, Your Honor, what – the jobs I’ve given
are jobs where people are, are looking down as they’re working.
A And that essentially causes a slight movement in the neck as they look
down, of course (INAUDIBLE) –
A – so it doesn’t appear that that’s (INAUDIBLE) do, but I just wanted to
clarify the job description.
Q And obviously when people are looking down at their work, they’re also
able to look up and I assume (INAUDIBLE), correct?
Q So the answers would be the same?
His answer consisted of this one-sentence explanation: “I note that on, on Exhibit 12F, that, that – oh, I think it
was 14F, that the range of motion was not very restricted on examination, so as far as the objective findings that I
find that, that there isn’t any limitations.” R. 61-62.
R. 68. In the opinion, the ALJ imposed a neck limitation of frequent movement, stating: “I find
that the diminished range of motion in his neck and his reports of chronic pain would affect the
claimant’s ability to more than frequently flex and laterally rotate the neck[.]” R. 19.
Plaintiff complains that the confusion in the above exchange raises uncertainty about
what the ALJ concluded. The Government responds by claiming that it is all a moot issue
because the ALJ did not adopt an “occasional” limitation. Plaintiff counters that the VE seemed
to be assuming that these jobs would be require looking down on “an almost constant basis” and
that the VE’s testimony is ambiguous. Dkt. #24 at 16. As plaintiff rhetorically asks his opening
brief, “What meaning could flexing the neck have if a limitation to occasional did not preclude
jobs that required looking down throughout the workday?” Id. This a reasonable question, one
deserving an answer. The VE’s reference to “slight movement” is also ambiguous. Moreover, as
with the finger problems, the ALJ never provided a medically-backed explanation for why he
imposed some neck limitation but not a greater one.
More broadly, both of these two specific arguments implicate another argument, one not
fully developed but nonetheless important. Plaintiff argues that the ALJ should have given “very
little weight” to Dr. Nimmagadda’s opinions because he was “a non-examining physician who
does not have any relevant specialty.” Dkt #24 at 15. According to plaintiff, and undisputed by
the Government, Dr. Nimmagadda specializes in allergy, immunology, pulmonary medicine, and
internal medicine, the implication being that he lacks expertise about spinal problems. Id.
Without explicitly using the phrase, plaintiff is invoking one of the factors under the treating
physician rule. Under this rule, a treating physician’s opinion is entitled to controlling weight if it
is supported by medical findings and consistent with other substantial evidence in the record. 20
C.F.R. §404.1527(c)(2); Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014). If the ALJ does
not give the treating physician’s opinion controlling weight, the ALJ cannot simply disregard it
without further analysis. Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010). Instead, the ALJ
must determine what specific weight, if any, the opinion should be given. Moss¸ 555 F.3d at 561.
To make this determination, the ALJ must apply the checklist of factors set forth in 20 C.F.R.
§404.1527(c)(2). Campbell, 627 F.3d at 308 (referring to the factors as a “required checklist”);
Bauer v. Astrue, 532 F.3d 606, 608 (7th Cir. 2008). 4 Failure to apply checklist is reversible error.
Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010) (ALJ disregarded checklist).
The ALJ did not reference this rule and clearly did not follow this process in evaluating
any of the medical opinions. Plaintiff’s argument matches up with the fifth factor—degree of
specialization—and plaintiff raises a valid point about Dr. Nimmagadda’s expertise given that
this case requires navigation through a maze of technical and (to this Court, at least) confusing
terminology. It is not just a question of Dr. Nimmagadda’s expertise in isolation, but more
precisely how it compares to that of the treating doctors. Plaintiff was treated by doctors
specializing in the treatment of spinal problems as evidenced by his two spinal surgeries six
months apart. The ALJ only provided a cursory analysis of these opinions. Specifically, the
ALJ stated as follows: “I also give no weight to the repeated notations that the claimant is
‘disabled’ in the orthopedic treatment notes[.]” R. 19. The ALJ then offered several reasons for
the wholesale rejection of their opinions, one being that they were not familiar with SSA
regulations and another being that their comments did not “appear to” relate to claimant’s
general ability to work but only his ability to work as a welder. Id. But this analysis is cursory
and was not reached after explicitly applying the checklist. The first two factors (length and
These factors are as follows: (1) the length of treatment; (2) the nature and extent of the treatment relationship; (3)
the supportability of the medical opinion; (4) the consistency of the opinion with the record as a whole; (5) the
physician’s degree of specialization; and (6) other factors which tend to support or contradict the opinion. 20 C.F.R.
§ 404.1527(c)(2)(i)-(ii), (c)(3)-(6).
nature of the treatment relationship), for example, would suggest more weight be given to the
opinions of these treating doctors. Plaintiff was seen multiple times by his surgeon, Dr. Sliva,
who had a more close-up view than did Dr. Nimmagadda. 5 On remand, the ALJ should follow
the treating physician rule.
Another argument for remand is the ALJ’s credibility analysis, which is stated in full as
While I have considered the claimant's reports of pain and his alleged limitations
standing, walking, sitting, and lifting/carrying, his objective examinations note
moderate limitations and do not corroborate the severity of those limitations
alleged. For instance, he testified that he had no significant relief after the surgery,
but the record reflects that he had 90% pain relief by his own admission (Exhibit
8F/4-7) and he revised his testimony to testify that he had experienced some relief.
I have considered the claimant and his wife’s letter in evaluating his residual
functional capacity, but I do not find the level of pain and physical limitations
noted therein to be reflected in the orthopedic or pain specialist treatment records,
and his objective examinations suggest no more than moderate limitations. The
claimant's ability to drive without restrictions is not indicative of the level of
deficits alleged[;] he remains capable of helping out around the house on a limited
basis, and he exhibits no substantial atrophy or limitations in his dexterity during
all of his pain management appointments (Exhibits 8F, 9F). Given all of these
factors, I find that his testimony is not fully credible.
Plaintiff argues both that both the specific reasons as well as the overall approach are
flawed. An ALJ’s credibility determination should be reversed only if it is patently wrong.
Minnick v. Colvin, 775 F.3d 929, 937 (7th Cir. 2015). However, an ALJ’s decision may be
reversed if the ALJ “fail[s] to adequately explain his or her credibility finding by discussing
specific reasons supported by the record.” Id.; Craft v. Astrue, 539 F.3d 668, 678 (7th Cir. 2008)
The proper application of the treating physician rule should result in the total rejection (i.e., assigning “no weight”)
of the treating physician’s opinion only on rare occasions. See SSR 96-2p (“A finding that a treating source’s
medical opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may still be
entitled to deference and adopted by the adjudicator.”).
(a credibility finding “must be specific enough to enable the claimant and a reviewing body to
understand the reasoning”). In addition, an ALJ’s credibility finding will be reversed if it is
based on an error of fact. See Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir. 2014) (remanding
because the ALJ’s credibility determination “misstated some important evidence and
misunderstood the import of other evidence”); Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir.
2006) (an ALJ may not base a credibility determination on “errors of fact or logic”).
One of plaintiff’s overarching arguments is that the ALJ violated a fundamental Social
Security precept by concluding that plaintiff’s subjective pain complaints were not believable
because they were not supported by objective evidence. Plaintiff cites to several cases
supporting this point. 6 Plaintiff’s point is well taken. The first sentence in the above paragraph
states that “objective examinations . . . do not corroborate the severity” of plaintiff’s subjective
allegations. Relatedly, the ALJ discounted plaintiff’s wife’s statements because her observations
about plaintiff’s “level of pain” were not “reflected in the orthopedic or pain specialist treatment
records.” The ALJ’s explanation is essentially a tautology. It skirts the relevant question of
whether plaintiff’s subjective pain allegations should be believed given that the objective
evidence does not provide a definitive answer. As plaintiff notes, if the ALJ’s rationale were
accepted, then every statement from a family member would be precluded. The Seventh Circuit
has rejected such a view. Beardsley v. Colvin, 758 F.3d 834, 837 (7th Cir. 2014) (“Whatever
uncertainty may exist around such self-reports is not by itself reason to discount them—
otherwise, why ask in the first place?”).
See, e.g., Pierce v. Colvin, 739 F.3d 1046, 1049-50 (7th Cir. 2014) (“an ALJ may not discount a claimant’s
credibility just because her claims of pain are unsupported by significant physical and diagnostic examination
Another overarching credibility argument is that the ALJ failed to explicitly analyze the
seven credibility factors in SSR 96-7p. 7 The Government argues that the ALJ implicitly
considered all the factors. This conclusion is not self-evident. For example, as plaintiff argues,
the ALJ seemed to give no consideration to the fact that he “consistently sought treatment for his
symptoms including two surgeries on his cervical spine, a trigger point injection, physical
therapy, TENS unit treatment, and consistently prescribed narcotic pain medications.” Dkt. #24
at 13-14. Contrary to many cases seen by this Court, where the ALJ discounts testimony because
only conservative treatments were pursued, plaintiff’s doctors concluded relatively early in the
process that surgery was required.
Aside from these two overarching arguments, plaintiff raises criticisms about the specific
credibility reasons offered by the ALJ. This Court agrees.
90% Pain Relief Statement. This statement was given much weight based on the ALJ’s
multiple citations to it. Plaintiff argues that that the ALJ ignored the fact that this statement
concerned only his upper arm pain and did not speak to other problems such as numbness and
other areas such as the neck and hand, and the analysis also ignored plaintiff’s later reports that
the pain returned. Plaintiff has again raised valid points. Although the ALJ’s reliance on this
statement may not have been sufficient to warrant a remand by itself, given that a remand is
already being ordered, the ALJ should give this issue greater scrutiny. What is missing is an
analysis into whether this comment was an outlier, based on a single visit, or whether it reflected
a consistent improvement over time. There is some support in the record for plaintiff’s claim
that his pain had not permanently gone away, as evidenced by (among other things) his referral
The seven factors are: (1) daily activities; (2) the location, duration, frequency, and intensity of pain or other
symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side
effects of medication; (5) treatment, other than medication, taken to relieve pain; (6) any measures other than
treatment used to relieve pain; and (7) any other factors concerning functional pain limitations. SSR 96-7p.
to a pain specialist who, insofar as this Court can tell, did not doubt his claims of ongoing severe
pain. Also, the 90% statement should be viewed in the overall context of the report from which it
was taken. To illustrate, the Court will quote the statement along with adjacent portions of Dr.
HPI Comments: [Plaintiff] is s/p Cervical decompression and fusion by Dr. Sliva
twice with the most recent one in June of this year for radicular pain in the right
upper limb. He had 90% right arm pain relief from the above procedure. However,
he has experienced axial neck pain since the above operation.
This is a chronic problem. The current episode started more than 1 month ago. The
problem has been unchanged. The pain is present in the midline (He also has
radicular pain down the right upperlimb). The quality of the pain is described as
stabbing and burning. The pain is at a severity of 6/10. Associated symptoms
include numbness (right arm with Cervical flexion) and weakness (right upper
limb). Pertinent negatives include no chest pain or fever.
R. 389. It is not clear whether the ALJ considered this context, which seems to undermine the
force of the one statement when viewed in isolation.
Driving Without Restriction. Plaintiff complains that the ALJ misleadingly concluded
that plaintiff’s driving ability proved that he could work a full-time job. At issue is the following
sentence from the opinion: “The claimant’s ability to drive without restrictions is not indicative
of the level of deficits alleged.” R. 19. The Court agrees with plaintiff that the ALJ’s statement is
arguably an unfair characterization of the record. At the hearing, the plaintiff stated that he only
drove once a week to his father’s house, a four-mile trip, where he would sit with his father him
while his stepmom went to church. The ALJ asked plaintiff whether he had a driver’s license and
whether he had “[a]ny restrictions on it.” R. 35. Plaintiff stated that there were none. However, in
the opinion, the ALJ omits this context and re-casts this more technical answer into a broader
statement about plaintiff’s difficulties and pain while driving. Also, the ALJ did not discuss
plaintiff’s other statements about his driving, such as the following statement made on a Daily
Function Report: “I drive only short distance [because] it’s hard for me to move my neck to look
around.” R. 204 (emphasis added). The ALJ should acknowledge this counter-evidence on
Helping Around the House. Similarly, plaintiff argues that the ALJ overstated his
abilities around the house and glossed over contrary evidence, such as his “trouble washing his
hair by himself” and that he is “limited to microwave meals, does not do laundry, and most of his
day is spent sitting for a little while, laying down for awhile and generally trying to stay as
comfortable as possible.” Dkt. # 24 at 12. As the Seventh Circuit has noted, a claimant often can
perform household activities under a more flexible standard and then such activities are typically
judged by a lower standard of performance. See Bjornson, 671 F.3d at 647 (the “failure to
recognize these differences is a recurrent, and deplorable, feature of opinions by administrative
law judges in social security disability cases.”). Again, the Court finds that this one issue likely
would not be enough to justify a remand by itself, but the ALJ should still consider this evidence
more completely on remand.
No Substantial Muscle Atrophy. Plaintiff complains that the reference to lack of
“substantial atrophy” was both a mischaracterization of the record and an instance of “playing
doctor.” This Court agrees. The ALJ’s assertion is vague and is not supported by specific
evidence. As plaintiff summarizes in his opening brief, there is evidence that he had muscle
atrophy, decreased strength, and other problems. See Dkt. # 24 at 13 (citing R. 308, 390-401).
As for playing doctor, the ALJ did not point to any medical opinion or authority supporting the
implied premise of this argument—namely, that a person with no substantial muscle atrophy
would not have severe pain or numbness. The ALJ cannot merely rely on his own intuitions
about what medical findings mean. As noted above, plaintiff was treated by several doctors,
including Dr. Sliva, whose observations received only fleeting attention in the opinion.
For all the above reasons, the Court finds that the ALJ’s credibility analysis is not
sufficient. Having found that a remand is required, the Court need not analyze plaintiff’s
remaining arguments, which in general are less convincing and less developed than the above
arguments in any event. Indeed, these are the types of kitchen sink arguments that good
appellate advocacy and editing should eliminate. Motions for leave to file briefs in excess of the
page limit will not be granted in the future when it results in unnecessary appellate issues. In
remanding this case, this Court is not suggesting that any particular result should be reached.
For these reasons, plaintiff’s motion for summary judgment is granted, the government’s
motion is denied, and this case is remanded for further consideration.
Date: January 11, 2017
Iain D. Johnston
United States Magistrate Judge
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