HARLESS v. COLVIN

Filing 35

ORDER: The Court denies Harless's brief in support of appeal [Filing No. 25] and affirms the Commissioner's decision. See Order for details. Signed by Magistrate Judge Tim A. Baker on 2/21/2017.(SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
TRACY H. HARLESS,
Plaintiff,
vs.
NANCY A. BERRYHILL1 Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 1:16-cv-00494-TAB-TWP

ORDER
I.

Introduction
In reviewing Plaintiff Tracy H. Harless’s opening brief, the Court experienced a sense of

déjà vu. Harless’s entire argument section mirrors that from Woytsek v. Berryhill, No. 1:16-CV491-TAB-TWP, 2017 WL 562329, at *2 (S.D. Ind. Feb. 13, 2017). Attorney Patrick Mulvaney
represented Woytsek, and also represents Harless. Mulvaney presents the same three arguments
that he did in Woytsek, mostly word for word—that the ALJ erred at step three, failed to summon
a medical expert, and erred at step five. There is one difference. At least in Woytsek, Mulvaney
pointed to some evidence in his argument. Here he does not. The result, however, is the same.
As in Woytsek, Harless’s brief in support of appeal [Filing No. 25] is denied and the
Commissioner’s decision is affirmed.

1

Nancy A. Berryhill is substituted for Carolyn W. Colvin as the proper Defendant pursuant to
Fed. R. Civ. P. 25(d).

II.

Background
On February 3, 2012, Harless filed an application for Disability Insurance Benefits. On

March 3, 2014, Harless turned 45 years old and filed an application for Supplemental Security
Income. Both applications alleged disability beginning September 14, 2011, and both
applications were denied initially and upon reconsideration. Harless requested reconsideration,
attended a hearing with his attorney, and testified before an ALJ, along with a medical expert,
and Vocational Expert.
The ALJ issued an opinion on September 4, 2014, concluding that Harless became
disabled on March 3, 2014, and is only disabled for purposes of SSI. Harless is not disabled for
purposes of DIB because he became disabled after December 31, 2011, his date last insured . At
step one, the ALJ found that Harless has not engaged in substantial gainful activity since the date
of the application. At step two, the ALJ found that Harless’s severe impairments include
diabetes with associated neuropathy, coronary artery disease with high blood pressure, arthritis
and degenerative disc disease of the lumbar spine, obesity, mood disorder, and antisocial
personality disorder. At step three, the ALJ found that Harless’s impairments do not meet or
equal a listing.
At step four, the ALJ found that as of September 14, 2011, the date Harless alleges he
became disabled, Harless has the RFC to perform sedentary work with the following limitations:
he can lift, carry, push, and pull ten pounds occasionally and five pounds frequently.
He can stand and walk two hours in an eight-hour workday. He can sit six hours in
an eight hour workday. He can occasionally stoop, balance, crouch, craw, kneel,
and climb stairs and ramps. He can frequently handle and finger bilaterally. He
can occasionally perform overhead work with his right arm. He should not work
around hazards such as unprotected heights or unguarded dangerous moving
machinery. He should not climb ladders, ropes, or scaffolds. He can have only
occasional, superficial interaction with the public.

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[Filing No. 14-2, at ECF p. 20.] The ALJ found that Harless is unable to perform his past
relevant work as an auto repair claims adjustor, general construction worker, service writer,
counter parts person, or welder.
Beginning with Harless’s 45th birthday on March 3, 2014, his age category changed to an
individual closely approaching advanced age. At step five, the ALJ relied on MedicalVocational Rule 201.14 to find that once Harless entered this age category, there was no longer
work he could perform and he was therefore disabled. [Filing No. 14-2, at ECF p. 30.]
However, prior to March 3, 2014, the ALJ relied on the testimony of a VE to find that Harless
was able to perform the jobs of a dispatcher, coupon scanner, and order clerk. The ALJ
concluded Harless was therefore not disabled prior to March 3, 2014, but became disabled on
that date. [Filing No. 14-2, at ECF p. 30.]
The ALJ found Harless is only disabled for purposes of SSI. The ALJ denied Harless’s
application for DIB because he was not under a disability between September 14, 2011, the date
Harless alleges he became disabled, through December 31, 2011, his date last insured. The
ALJ’s decision became final when the Appeals Council denied Harless’s request for review.
This appeal followed.
III.

Standard of review
The Court’s review of the ALJ’s decision is limited to deciding whether the findings of

fact are supported by substantial evidence and whether there was an error of law. Stepp v.
Colvin, 795 F.3d 711, 718 (7th Cir. 2015); Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013).
“Substantial evidence” means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). The
Court reviews the entire record but does not reweigh the evidence or resolve conflicts in the

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record; nor does the Court make credibility determinations or substitute its own judgment for that
of the ALJ. Stepp, 795 F.3d at 718; Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). The
ALJ need not mention every bit of evidence in the record, but he must build a “logical bridge”
between the evidence and his conclusions. Arnett v. Astrue, 676 F.3d 586, 592 (7th Cir. 2012);
Varga v. Colvin, 794 F.3d 809, 813 (7th Cir. 2015).
IV.

Discussion
Despite the many differences between their claims for disability, Harless has one thing in

common with Woytsek—counsel. It is efficient for a disability benefits attorney to create
exemplar arguments to fit individual circumstances. Williams v. Astrue, No. 1:09-CV-1577DML-RLY, 2011 WL 2532905, at *4 (S.D. Ind. June 24, 2011). However, Harless’s counsel is
particularly notorious for re-using arguments: “Mr. Mulvany’s briefs in social security disability
cases also routinely consist primarily of boilerplate used from one case to the next, which many
times is not sufficiently tied to the facts and issues of the particular case.” Id. Here, Mulvaney’s
use of boilerplate arguments reaches a new level. Remarkably, the medical evidence in Harless’s
case is not tied to these boilerplate arguments in the opening brief. Counsel provided a statement
of facts about Harless’s medical background, but failed to argue its meaning. Counsel made the
same word-for-word, boilerplate arguments in the same order as in Woytsek, but upon deleting
Woytsek’s discussion of the record, he failed to put Harless’s in its place. Presently before the
Court is a factual background followed by a recitation of case law with broad boilerplate
arguments that the ALJ erred. It is not clear how counsel intended the facts to support the
arguments.
The only changes Harless’s counsel made to the first argument that the ALJ erred at step
three are Plaintiff’s name, page numbers of the ALJ’s opinion, and the names of some

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impairments. Harless removed the discussion on Woytsek’s medical evidence. In its place,
Harless merely states, “he ignored all of the psychiatric examination and treatment evidence
proving disability dated before 2012.” [Filing No. 25, at ECF p. 12.] Categorically, this is the
type of evidence Harless should have presented to the Court, along with an analysis of why it
requires remand. But Harless fails to tie-in any medical evidence in his argument and fails to
provide any analysis. “Judges are not like pigs, hunting for truffles buried in briefs.” United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991). “Nor are they archaeologists searching for
treasure.” Jeralds ex rel. Jeralds v. Astrue, 754 F. Supp. 2d 984, 985 (N.D. Ill. 2010). The Court
will not overturn an ALJ’s decision without reason. This undeveloped argument is therefore
waived.2 Schomas v. Colvin, 732 F.3d 702, 708 (7th Cir. 2013).
Harless’s second argument, that the ALJ failed to summon a medical expert, is also
identical to its counterpart in Woytsek, except the citation now points to the three pages of the
present ALJ’s step three discussion. In Woytsek, the Court found the ALJ relied on a medical
expert. See Woytsek, 2017 WL 562329, at *2 (“This argument is difficult to reconcile with the
above analysis of the evidence the ALJ relied on to determine equivalency.”). So too here, Dr.
Salt, a medical expert, opined that Harless did not have a medically determinable mental
impairment during the time period at issue. [Filing No. 14-3, at ECF p. 53.] What is more, Dr.
McKenna is a medical expert that attended the hearing and testified about Harless’s impairments
before the ALJ. Harless does not suggest any medical findings might change Dr. Salt’s opinion
or undermine Dr. McKenna’s presence at the hearing. Thus, Harless’s argument fails.

2

Despite minimal discussion in the opening brief, Harless presents some arguments about the
evidence of record for the first time in his reply brief. Were the Court to deem these arguments
are not waived, they would nevertheless fail on the merits because none of the evidence is dated
within the narrow time period at issue here, between the onset date in September 2011 and the
date last insured in December 2011.
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Harless’s third argument is also identical to that from Woytsek, except the citation now
aligns with the present ALJ’s step five discussion and the ALJ’s moderate finding is social
functioning. Also, the instant brief excludes Woytsek’s two-paragraph discussion on unskilled
work. Identically, Harless argues that “the ALJ’s limitation of the work did not address the
impact of the claimant’s mental limitations as stated in detail in the treating psychiatrist’s
evaluations assessing GAFs in the totally disabled range of 50.” [Filing No. 25, at ECF p. 17.]
In Woytsek, the Court found the GAF score of 50 does not prove disability. Not only does the
same still hold true, Harless’s GAF score is dated February 9, 2011, which is outside the critical
time period at issue here, between the onset date in September 2011 and the date last insured in
December 2011. [Filing No. 14-8, at ECF p. 114-15.] Therefore, this argument fails.
V.

Conclusion
Harless has in no way demonstrated that the ALJ failed to build a logical bridge from the

evidence to his conclusion that Harless is not disabled. The brief Mulvaney filed in this case
stands out, but only for its lack of substance. The Court declines to issue sanctions sua sponte,
but Harless’s counsel could face potential sanctions upon filing similar briefs without substance
in other cases. Ultimately, the Court agrees with the Commissioner that the ALJ did not commit
reversible error. Accordingly, the Court denies Harless’s brief in support of appeal [Filing No.
25] and affirms the Commissioner’s decision.
Date: 2/21/2017

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

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Distribution:
Patrick Harold Mulvany
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]

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