James E. v. Berryhill

357 F. Supp. 3d 700
CourtDistrict Court, E.D. Illinois
DecidedFebruary 11, 2019
DocketNo. 17 CV 50295
StatusPublished
Cited by4 cases

This text of 357 F. Supp. 3d 700 (James E. v. Berryhill) is published on Counsel Stack Legal Research, covering District Court, E.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James E. v. Berryhill, 357 F. Supp. 3d 700 (illinoised 2019).

Opinion

Iain D. Johnston, United States Magistrate Judge

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.1 He alleges that numbness in his extremities allows him to sit, stand, or walk for only very short periods. He can only concentrate for brief periods, and suffers from daily migraines. The ALJ denied his claim, finding that these allegations were inconsistent with the record in various ways. In this appeal, plaintiff raises arguments attacking both the listing and RFC analyses.2 Many of these are technical arguments often raised by plaintiff's counsel. Even though doubt remains as to whether plaintiff will ultimately be found disabled, the Court finds that a remand is required.

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.3 Plaintiff notes that the State agency doctors did not analyze this listing, and the ALJ did not call a medical expert at the hearing. Plaintiff's argument focuses mostly on whether plaintiff equals (as opposed to meets) this listing. In his opening brief, he cited to two Seventh Circuit cases holding that "[a]

*702finding of medical equivalence requires an expert's opinion on the issue." Minnick v. Colvin , 775 F.3d 929, 935 (7th Cir. 2015) ; Barnett v. Barnhart , 381 F.3d 664, 670 (7th Cir. 2004) ("the ALJ never consulted a medical expert regarding whether the listing was equaled"). This is a straightforward argument based on the rule in these two cases.

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").4 Exs. 3A-6A. On this form, the Agency doctors indicated that they had considered listings 1.04 ("Spine Disorders"), 12.08 ("Personality Disorders"), and 12.09 ("Substance Addiction Disorders"). R. 88, 100, 115, 130. To state the obvious, Listing 11.14 was not mentioned. The Government argues, however, the Agency doctors implicitly considered and rejected Listing 11.14 based on the separate, contemporaneous one-page form entitled "Disability Determination and Transmittal" (the "Transmittal form"). Exs. 1A-2A. This form does not contain any analysis and merely sets forth bare-bones information, bureaucratic in nature, including a numerical-letter code indicating (according to the Government) that "no listing was met or medically equaled."5 Dkt. # 19 at 5. The Government argues that it is reasonable to infer from this numerical-letter code that the agency doctor considered every possible listing and then concluded none were met or equaled. In effect, under the Government's view, the Transmittal form acts like a Zamboni by smoothing over flaws or omissions in 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 , 357 F.3d 697 (7th Cir. 2004). According to the Government, Scheck holds that the Transmittal form "alone is sufficient" to establish that the Agency doctor considered every possible listing. Dkt. # 19 at 5. But in reading Scheck , it is not clear that the Seventh Circuit was considering the situation where the Explanation and Transmittal forms were ostensibly conflicting, as here, or that the Seventh Circuit was announcing a rule that Transmittal form trumped the Explanation form in the event of an implied conflict. Moreover, even if the Government's reading of Scheck were correct, there would still be an additional question of how to reconcile Scheck with the Seventh Circuit's later decision in Minnick . The Government did not offer an explanation.

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.6 Here, on the Explanation form, the Agency doctors did explicitly consider three listings (1.04, 12.08, and 12.09), showing that these doctors believed that some listings deserved to be mentioned explicitly. Under the Government's argument, there would be no need to ever identify any specific listing by name on the Explanation form. A second roadblock to the Government's argument is that the ALJ, in the written decision, chose to explicitly analyze whether plaintiff met Listing 11.14. This suggests that the ALJ independently concluded that there was enough evidence to make a colorable argument that plaintiff met Listing 11.14. In sum, for the above reasons, the Court finds that a remand is required because the ALJ failed to obtain a supporting medical opinion on these issues.

Having concluded that a remand is required, this Court will not address plaintiff's remaining arguments for several reasons.7 There are many arguments, and they would require a fair amount of judicial resources to go through all of them; the Court finds that they are weaker in any event; and it is possible that the ALJ and counsel can address and rectify the alleged errors on remand, especially if the ALJ calls a medical expert at a new hearing.

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.

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Cite This Page — Counsel Stack

Bluebook (online)
357 F. Supp. 3d 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-e-v-berryhill-illinoised-2019.