Plaintiff Argues That ... A Phrase Worth Deletion

I read briefs written by other lawyers, both in the office and from lawyers outside of the firm.  Every once in a while, I read that line, [plaintiff] argues, contends, or asserts that [the ALJ erred].  We already covered using our client's name in briefs.  The question is why would we write, "[plaintiff] argues that ..."  

The short answer is that we should not.  Of course the plaintiff argues and contends that the ALJ erred.  We titled the issue header with the words that direct the proposition that that the ALJ erred.  Of course that is the contention.  Instead of:

    Plaintiff contends that the ALJ erred in consideration of the symptom and pain limitation testimony.

Consider:

    The ALJ erred in consideration of the symptom and pain limitation testimony.

First, the absence of the contends language leaves out the understood position that the argument presented represents the plaintiff's contentions.  Second, leaving out three words makes the sentence shorter.  Don't leave needless words in the brief.  As needless words, they are unnecessary and a distraction.  

The most common place that I see this awkward writing convention is at the beginning of the argument.  Social Security disability cases in federal court are driven by the facts.  Two cases with the nearly identical legal issue can have divergent results based solely on the strength of the facts undergirding the issue.  But writers want to tell the court where the issue is going, so we start with the conclusion.  The short answer is, don't.  

The better format  consists of introducing the issue, not surprisingly, with the facts.  

The ALJ found that plaintiff could stand/walk for the entire workday.  [CITATION].  Plaintiff testified to a limited an ability  to walk three blocks or a half mile.  [CITATION].  The consultative examiner opined that plaintiff could stand/walk six hours in a workday.  [CITATION].   The state agency reviewing physician completing the residual functional capacity assessment required by statute and regulation found that plaintiff could stand/walk for about six hours in an eight-hour workday.  [CITATION].  No evidence supports the complete absence of a stand/walk limitation within plaintiff's residual functional capacity.  The ALJ erred in failing to include a stand/walk limitation without explaining the nexus between the evidence and the conclusion.  

There are no contentions.  The paragraph states facts/evidence and conclusions driven by the record.  It is not necessary to write that our client contends anything.  Remember the adage about writing:

The earliest recorded use of the quote "If I Had More Time, I Would Have Written a Shorter Letter" comes from French mathematician and philosopher Blaise Pascal's work "Lettres Provinciales" in 1657. Written in French the quote says, "Je n’ai fait celle-ci plus longue que parce que je n’ai pas eu le loisir de la faire plus courte." This translates to "I have made this longer than usual because I have not had time to make it shorter."

Or other versions of the same idea.   

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Suggested Citation:

Lawrence Rohlfing, Plaintiff Argues That ... A Phrase Worth Deletion, California Social Security Attorney (May 16, 2021)  https://californiasocialsecurityattorney.blogspot.com/2021/05/plaintiff-argues-that-phrase-worth.html