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Byich v. Colvin

United States District Court, N.D. Indiana, Hammond Division

March 4, 2015

JOHN E. BYICH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

OPINION AND ORDER

PAUL R. CHERRY, Magistrate Judge.

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff John E. Byich on January 31, 2014, and a Memorandum in Support of Plaintiff's Motion for Summary Judgment or Remand [DE 29], filed by Plaintiff on December 2, 2014. Plaintiff requests that the July 12, 2012 decision of the Administrative Law Judge denying his claim for disability insurance benefits be reversed and remanded for further proceedings.

As an initial matter, the Court addresses what has become endemic filing irregularities by counsel for Plaintiff in this and other cases. After receiving two extensions of time to file his opening brief, Plaintiff purportedly filed an opening brief on July 28, 2014, but the document was blank. On July 30, 2014, Plaintiff again purportedly filed an opening brief. However, on October 31, 2014, after receiving two extensions of time to file a response brief, the Commissioner filed a Motion to Strike the July 30, 2014 opening brief, informing the Court that, although the caption on the brief was for this case, the facts, administrative history, and argument were for a different case. The Court struck the July 30, 2014 opening brief. With leave of Court, Plaintiff filed a new Opening Brief on December 2, 2014. The Commissioner filed a response brief on December 30, 2014.

On February 2, 2015, having received an extension of time, Plaintiff filed a reply brief. But, it was blank. The same day, Plaintiff refiled a reply brief with content. But, this time, the attorney signature did not match the electronic filer. On February 6, 2015, Plaintiff filed, for the third time, a reply brief. However, as with the original opening brief, although Plaintiff John Byich's name is in the caption of the document, the facts and argument are from a different case.

The same problem from the same Plaintiff's attorney and firm has come to light in two other social security cases before this Court. See 2:13-CV-422; 2:14-CV-24. In both cases, as in this case, the Court gave the plaintiff leave to file a new opening brief. In one of the requests for leave to file a new opening brief filed on December 30, 2014, plaintiff's counsel indicated that the attorney responsible for the errors was no longer working for the firm. However, the reply brief in this case, which does not address this Plaintiff's case, was filed on February 6, 2015. Thus, the problem persists. Given the length of time this case has been pending, the fact that Plaintiff was already once given an opportunity to refile a brief to properly address the facts of this case, and that the Court is able to make a ruling based on the Opening Brief and the Commissioner's response brief, the Court does not afford Plaintiff an opportunity to refile a reply brief.

For the following reasons, the Court denies Plaintiff's request for remand.

PROCEDURAL BACKGROUND

Plaintiff suffers from diabetes mellitus with neuropathy, recurrent right foot ulcer, attention deficit hyperactivity disorder, and anxiety disorder. On August 17, 2010, Plaintiff filed applications for disability insurance benefits and supplemental security income, alleging an onset date of April 25, 2009. The application was denied initially on December 9, 2010, and upon reconsideration on April 4, 2011. Plaintiff timely requested a hearing, which was held on June 12, 2012, before Administrative Law Judge ("ALJ") Edward P. Studzinski. In appearance were Plaintiff, his father, Plaintiff's attorney, and a vocational expert.

The ALJ issued a written decision denying benefits on July 12, 2012, making the following findings:

1. The claimant last met the insured status requirements of the Social Security Act through December 31, 2009.
2. The claimant has not engaged in substantial gainful activity since April 25, 2009, the alleged on set date.
3. The claimant has the following severe impairments: diabetes mellitus with neuropathy and recurrent right foot ulcer; attention deficit hyperactivity disorder (ADHD); and anxiety disorder.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(a) and 416.967(b). The claimant can stand/walk for 4 hours in an 8-hour workday but cannot assume any position for longer than 60 minutes after which he will have to change positions for 5 minutes without needing to abandon his workstation. The claimant can only walk one city block at a time; and he needs to be able to use an assistive device while walking. The claimant can occasionally operate foot controls with his right foot; occasionally balance; and occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds. The claimant must avoid concentrated exposure to extreme cold; hazardous environments, including large bodies of water or unexposed flames; hazardous unguarded machinery; and no driving. The claimant is limited to simple, routine, and repetitive tasks; can make only simple work-related decisions; requires the exercise of only simple judgment; and he can handle only occasional and minor changes in the work setting.
[In a footnote to paragraph 5, the ALJ wrote: I note that even if the claimant had been limited to work at the sedentary exertional level as in hypothetical #3, there would still be jobs that the claimant could do in the national economy.]
6. The claimant is unable to perform any past relevant work.
7. The claimant was born [in 1962] and was 46 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date.
8. The claimant has a limited education and is able to communicate in English.
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled, " whether or not the claimant has transferable job skills.
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
11. The claimant has not been under a disability, as defined in the Social Security Act, from April 25, 2009, ...

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