Smith v. SSA
MEMORANDUM OPINION & ORDER: (1) The plaintiff's motion for summary judgment, R. 12 , is DENIED with regard to his durational-requirement argument and reasonable-person argument. Plaintiffs remaining arguments are DENIED WITHOUT PREJUDICE. (2) The defendant's motion for summary judgment, R. 13 , is DENIED WITHOUT PREJUDICE. (3) By Monday, November 10, 2014, the plaintiff SHALL FILE a brief that follows the Court's standing order for socia l security cases, see R. 10 . That brief may contain argument on ONLY (1) the treating-physician rule and (2) whether the ALJ considered Smith's impairments in combination. Specifically, counsel SHALL INCLUDE in his new brief: (a) C itations to the record with explanations of the relevance of those citations. (b) Application of the relevant law to the facts in the record. (4) Failure to follow the requirements in (3) may result in denial of all claims. (5) By Monday, November 24, 2014, the Commissioner MAY FILE a response. If the Commissioner does not file a response, the Court will rely on the Commissioner's current motion for summary judgment. (6) If counsel for Smith makes the "duratio nal requirement" argument before any judge in the Eastern District of Kentucky, even if presented solely in the issues presented, he MUST DISCLOSE how many times he has made the argument, the result in that case, and the result of a ny appeal. (7) If counsel files an identical brief in the future, the Court will strike the brief and order plaintiff to obtain new counsel who will give individual consideration to the case. Signed by Judge Amul R. Thapar on 10/27/2014.(KJA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Civil No. 14-117-ART
MEMORANDUM OPINION &
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The plaintiff, Casper Smith, brought this action under 42 U.S.C. §§ 405(g)1 and
1383(c)(3) to obtain judicial review of the Commissioner’s decision to deny him disability
insurance benefits. R. 2 at 1. Plaintiff’s counsel, however, has not sufficiently developed
any of his arguments. While the Court finds two issues forfeited, the Court orders that the
plaintiff rebrief the remaining two issues with full development of the arguments, including
explanations of the relevant portions of the administrative record and application of the law
to the record.
Smith alleges that he has been unable to work since August 24, 2011, due to problems
with his neck, back and hip; carpal tunnel syndrome; depression; and anxiety. R. 8-3 at 30
(Admin. Tr. at 30 [hereinafter Tr.]). Due to those medical issues, Smith filed an application
for disability insurance benefits on September 20, 2011. R. 8-4 at 73 (Tr. at 173). The
Smith cited 42 U.S.C. § 405(a) in his complaint, R. 2 at 1, but § 405(g) is the proper basis for the Court’s
jurisdiction over this matter.
Social Security Administration denied Smith’s application, R. 8-4 at 3 (Tr. at 103), as well as
his request for reconsideration, id. at 15 (Tr. at 115). Smith then requested a hearing before
an Administrative Law Judge (ALJ), id. at 28 (Tr. at 128), who denied his claim. R. 8-3 at
28 (Tr. at 28).
The Appeals Council denied Smith’s request for review of the ALJ’s
decision, id. at 1 (Tr. at 1), and Smith filed his complaint in this Court, R. 2.
The ALJ applied the five-step sequential evaluation process used in Social Security
decisions. See 20 C.F.R. § 404.1520; Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th
Cir. 2003; R. 8-3 at 28–37 (Tr. at 28–37). First, the ALJ found that Smith had not engaged in
substantial gainful activity since August 24, 2011. R. 8-3 at 30 (Tr. at 30). Second, Smith
had the following severe impairments: (1) degenerative disc disease of the cervical and
lumbar spines; (2) degenerative joint disease of the hip; (3) carpal tunnel syndrome; and (4)
depression and anxiety. Id. at 30–33 (Tr. 30–33). Third, Smith did not “have an impairment
or combination of impairments” that met or medically equaled one of the Commissioner’s
listed impairments. Id. at 33 (Tr. at 33). Fourth, Smith’s residual functional capacity
allowed him to perform a reduced range of sedentary work, although he could not return to
any of his past relevant work. Id. at 33–35 (Tr. at 33–35). Fifth, and finally, given Smith’s
age, education, work experience, and residual functional capacity, he could perform certain
sedentary jobs that existed in significant numbers in the national economy. Id. at 36 (Tr. at
The Court plays a limited role in social-security cases. 42 U.S.C. § 405(g). Under
the Social Security Act, the Court must determine if the ALJ applied the correct legal
standard and made factual findings supported by substantial evidence in the record. Id.; see
also Rabbers v. Comm’r of Soc. Sec. Admin., 582 F.3d 647, 651 (6th Cir. 2009) (articulating
the same standard for judicial review by the court of appeals). Substantial evidence is “more
than a scintilla of evidence but less than a preponderance” and includes “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v.
Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). In evaluating the ALJ’s
decision, the Court cannot “try the case de novo, nor resolve conflicts in the evidence, nor
decide questions of credibility.” Id.; see Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.
Smith lists four arguments in support of his summary-judgment motion: (1) the ALJ
did not give the appropriate weight to the opinion of Smith’s treating physician and therapist,
and failed to provide adequate reasoning for those conclusions; (2) the ALJ did not consider
the combined effects of Smith’s impairments in determining whether Smith was disabled; (3)
the ALJ did not analyze the durational requirement of substantial gainful activity; and (4) a
reasonable person could not conclude that Smith is not disabled, given the results from his
treating physician. R. 9-1 at 1–2.
But Smith does not do much more than list arguments. The Court’s standing order for
social security benefits cases prohibits plaintiffs from making general allegations without
providing specific evidence for their claims. See R. 10 at 3–4 (The Court “will not formulate
arguments on the parties’ behalf,” and parties must “provide the Court with specific page
citations to the record to support their arguments.”). In disregard of the standing order, the
brief contains general statements of law without specific application to Smith’s case. In fact,
counsel has filed an almost identical brief before this Court in at least three different cases.
See Vanover v. Colvin, No. 13-CV-00093-DLB, 2014 WL 3659778, R. 11-1 (E.D. Ky. July
23, 2014); Reid v. Colvin, No. 13-cv-00036-ART, 2013 WL 3270436, R. 9-1 (E.D. Ky. June
25, 2013); Treadway v. Astrue, No. 5:11-cv-00345-DCR, R. 9-1 (E.D. Ky. 2012). It strains
credulity that these cases are so similar that they require no more than a sentence or two
adjustment to the brief’s argument section. Social security plaintiffs rely on counsel to make
tailored arguments on their behalf. Filing something akin to a form brief is not what a
plaintiff expects. Given the cursory briefing, the Commissioner contends that Smith has
forfeited all of his arguments. R. 13 at 3–4. Such a result would harm only Smith, however,
while the fault rests with his counsel. The Court must still find two of Smith’s arguments
forfeited, but orders rebriefing on the other two.
On two issues, Smith offers no development at all and forfeits his argument. First,
Smith lists the “durational requirement” in his “Issues Presented,” but does not even
acknowledge this point in the body of his brief. See Vanover, 2014 WL 3659778, at *6–7
(same counsel and same problem); Reid, 2013 WL 3270436, at * 6 (same).
he avoids the subject for good reason: counsel has been warned about this line of
argumentation in the past. See Treadway v. Astrue, No. 5:11-345-DCR, (E.D. Ky. Jan. 18,
2012) (requiring counsel to identify cases in which he has made this argument, the result
before the district court, and any appellate decisions). Indeed, counsel has waged this battle
before virtually all the judges in the Eastern District of Kentucky, and come away with defeat
every time. See Clark v. Astrue, No. 11-260-ART, 2011 WL 6742926, at *4 (E.D. Ky. Dec.
The Court need not rehash the merits again.
Because Smith’s position is
“unaccompanied by some effort at developed argumentation,” the Court finds the claim
forfeited. McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (internal quotation
marks omitted); see R. 10 at 4 (“Failure to provide specific citations to the record may
constitute grounds for denial of the motion.”).
The Court will require counsel, if he puts
forth the argument again, to disclose every instance he has raised the argument, the result
before the Court, and the result on appeal.
Smith’s counsel also does not develop the “reasonable person” argument. Smith’s
“Issues Presented” states that the Court should decide whether “a reasonable person could
conclude and justify that plaintiff is not disabled in light of the substantial limitations
assigned by the treating physician, supported by overwhelming medical evidence.” R. 12-1
at 2. It is unclear if counsel is simply contending that the ALJ’s decision was not supported
by substantial evidence. See Cutlip, 25 F.3d at 286. The Court, however, is not a psychic
reading counsel’s mind. Because counsel raises this issue “in the most skeletal way, leaving
the court to . . . put flesh on its bones,” he forfeits the argument. Kelsey, 125 F.3d at 996
(internal quotation marks omitted).
Turning to the remaining arguments, a colorable claim may lurk in the record
regarding whether the ALJ violated the treating-physician rule and whether the ALJ
considered Smith’s impairments in combination. But, counsel simply recites legal principles
with no application to the facts. The brief asserts that the ALJ failed to comply with the
treating-physician rule, but offers no reasons or evidence why that is so.
R. 12-1 at 3.
While at two points the brief parenthetically cites to the same four pages of the record,
counsel offers no attempt to relate those four pages to the law cited in the brief or identify
what on those four pages is relevant. In other instances, counsel provides no record citations
to support an argument. For example, the brief proclaims that “[i]t is clear from the record
that Plaintiff should have been determined to be disabled.” Id. at 4. That statement is not
followed or preceded by record evidence, nor an explanation of what facts or law lead to the
conclusion that Smith is disabled. Likewise, the brief claims that the ALJ did not consider
the “cumulative affect [sic]” of Smith’s impairments — with no support from the record.
Without any actual argumentation on those issues, the Court cannot reach a decision.
Because the Court finds it unjust to Smith to find the entire brief forfeited, the Court
orders rebriefing on the treating-physician rule and whether the ALJ considered Smith’s
impairments in combination. Accordingly, it is ORDERED as follows:
The plaintiff’s motion for summary judgment, R. 12, is DENIED with regard
to his durational-requirement argument and reasonable-person argument.
Plaintiff’s remaining arguments are DENIED WITHOUT PREJUDICE.
The defendant’s motion for summary judgment, R. 13, is DENIED
By Monday, November 10, 2014, the plaintiff SHALL FILE a brief that
follows the Court’s standing order for social security cases, see R. 10. That
brief may contain argument on ONLY (1) the treating-physician rule and (2)
Specifically, counsel SHALL INCLUDE in his new brief:
Citations to the record with explanations of the relevance of those
Application of the relevant law to the facts in the record.
Failure to follow the requirements in (3) may result in denial of all claims.
By Monday, November 24, 2014, the Commissioner MAY FILE a response.
If the Commissioner does not file a response, the Court will rely on the
Commissioner’s current motion for summary judgment.
If counsel for Smith makes the “durational requirement” argument before any
judge in the Eastern District of Kentucky, even if presented solely in the issues
presented, he MUST DISCLOSE how many times he has made the argument,
the result in that case, and the result of any appeal.
If counsel files an identical brief in the future, the Court will strike the brief
and order plaintiff to obtain new counsel who will give individual
consideration to the case.
This the 27th day of October, 2014.
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