Lechner v. Barnhart

• Decision Date: 26 August 2004
• Docket Number: No. 03-C-1425.,03-C-1425.
• Parties: William LECHNER, Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 1005

330 F.Supp.2d 1005

William LECHNER, Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration, Defendant.

No. 03-C-1425.

United States District Court, E.D. Wisconsin.

August 26, 2004.

David F. Traver, Milwaukee, WI, for Plaintiff.

Nora S. Barry, for Defendant or Respondent.

DECISION AND ORDER ON MOTION FOR AWARD OF ATTORNEY'S FEES

ADELMAN, District Judge.

Plaintiff William Lechner applied for supplemental security income (SSI) under the Social Security Act, alleging that he was disabled due to mental illness. An Administrative Law Judge (ALJ) denied his claim following a hearing, and plaintiff brought this action under 42 U.S.C. § 405(g) seeking judicial review of the denial. I reversed and remanded the ALJ's decision under § 405(g), sentence four, Lechner v. Barnhart, 321 F.Supp.2d 1015 (E.D.Wis.2004), and plaintiff now moves for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.

I. EAJA STANDARD

The EAJA mandates an award of attorney's fees to a "prevailing party" in a civil action against the United States where the government's position was not "substantially justified," no "special circumstances" make an award unjust, and the fee application is submitted to the court within 30 days of final judgment. 28 U.S.C. § 2412(d)(1); United States v. Hallmark Const. Co., 200 F.3d 1076, 1078-79 (7th Cir.2000). Because I reversed and remanded the Commissioner's decision under sentence four of § 405(g), plaintiff was the "prevailing party." See Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); Raines v. Shalala, 44 F.3d 1355, 1362 (7th Cir.1995). However, the Commissioner argues that the motion should be denied because her position was "substantially justified." In the alternative, she argues that the amount of the request is excessive and that any fee award should be reduced.¹

II. SUBSTANTIAL JUSTIFICATION

A. Standard

While the fact that the Commissioner lost in court creates no presumption in favor of awarding fees, Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.1994), the Commissioner bears the burden of showing that the government's position was "substantially justified" in order to avoid a fee award, Cummings v. Sullivan, 950 F.2d 492, 495 (7th Cir.1991). This requires the Commissioner to show that her position had a reasonable basis both in law and fact. Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). The position must be "`justified in substance or in the main' — that is, justified to a degree that could satisfy a reasonable person." Id. at 565, 108 S.Ct. 2541. The position need not be "`justified to a high degree,'" id. at 565, 108 S.Ct. 2541, but it must be "more than merely undeserving of sanctions for frivolousness," id. at 566, 108 S.Ct. 2541; see also Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir.2003) ("The standard is whether the Secretary's position is clearly reasonable, well founded in law and fact, solid though not necessarily correct.") (internal quote marks omitted); Hallmark Const. Co., 200 F.3d at 1080 (stating that the government must show that its position was grounded in (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced).

Although the court makes only one determination on this issue, it must consider both the government's posture during the litigation before the court and the pre-litigation decision or action on which the lawsuit was based. See Cummings, 950 F.2d at 496-97; see also Commissioner, INS v. Jean, 496 U.S. 154, 159, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990). Thus, fees may be awarded in cases where the government's pre-litigation conduct was not substantially justified even though its litigating position may have been substantially justified and vice versa. Marcus, 17 F.3d at 1036.

B. Analysis

In the present case, I reversed the ALJ's decision for three reasons. I address each in turn under the EAJA standard.

1. Evaluation of Plaintiff's Credibility

The ALJ committed two errors in evaluating plaintiff's credibility. First, the ALJ improperly limited her credibility determination to the single issue of plaintiff's so-called "black out" episodes, failed to build a bridge from the evidence discussed in the body of her decision to her conclusions, and failed to consider relevant factors under SSR 96-7p. Lechner, 321 F.Supp.2d at 1028-30. Second, the ALJ applied an improper legal standard, stating that plaintiff's testimony was not credible because it was "not supported by the objective medical evidence of record," (Tr. at 23), while SSR 96-7p provides: "An individual's statements ... may not be disregarded solely because they are not substantiated by objective medical evidence." Lechner, 321 F.Supp.2d at 1030.

The Commissioner argues that her position on this issue was nevertheless substantially justified, characterizing the ALJ's error as one of insufficient "articulation." See Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir.1992) (holding that an ALJ's failure to properly articulate her rationale "in no way necessitates a finding the Secretary's position was not substantially justified"). While the ALJ's failure to adequately explain her conclusion was part of the problem, the Commissioner offers no defense of the ALJ's application of a legal standard at odds with that set forth in SSR 96-7p. It is well-established in this Circuit that ALJs must comply with SSR 96-7p in evaluating a claimant's credibility, see, e.g., Lopez v. Barnhart, 336 F.3d 535, 539-40 (7th Cir.2003); Brindisi v. Barnhart, 315 F.3d 783, 787 (7th Cir.2003), including its mandate that an "ALJ may not disregard subjective complaints merely because they are not fully supported by objective medical evidence," Knight v. Chater, 55 F.3d 309, 314 (7th Cir.1995); see, e.g., Indoranto v. Barnhart, 374 F.3d 470, 474 (7th Cir.2004) (citing Clifford v. Apfel, 227 F.3d 863, 871-72 (7th Cir.2000)). And district courts in this Circuit have regularly held that an ALJ's failure to do so means that the Commissioner's position was not substantially justified. Koschnitzke v. Barnhart, 293 F.Supp.2d 943, 952 (E.D.Wis.2003) (collecting cases); Crosby v. Halter, 152 F.Supp.2d 955, 960 (N.D.Ill.2001) (awarding fees where ALJ's finding improperly rested on the absence of objective medical evidence to corroborate the plaintiff's testimony); see also Cornella v. Schweiker, 728 F.2d 978, 985 (8th Cir.1984) ("It was not reasonable for the Secretary to ignore her own regulations.").

The Commissioner contends that she had a reasonable basis for concluding that the ALJ's analysis was adequate based on the ALJ's discussion of several relevant credibility factors in her decision (e.g., the medical evidence, plaintiff's "stable" mental functioning, his progress in treatment, and his activities of daily living). The Commissioner made essentially the same argument at the merits stage. See Lechner, 321 F.Supp.2d at 1028. While the standard is different at the EAJA stage, see Crosby, 152 F.Supp.2d at 959, I find her arguments no more persuasive now than I did then. Contrary to the plain requirements of SSR 96-7p, the ALJ limited her credibility determination to plaintiff's testimony about his "black out" episodes. As the court noted in granting fees in Crosby, "the ALJ is obliged to examine and weigh all the evidence including observations by treating and examining physicians, third-party testimony, the claimant's testimony and daily activities, functional restrictions, pain medication taken, and aggravating or precipitating factors to evaluate how much the claimant's impairment affects his ability to work." 152 F.Supp.2d at 960 (internal quote marks omitted). The ALJ mentioned only some of this evidence in her decision, and even then did not tie it to her determination; the court "cannot infer a credibility determination from a general discussion of the evidence." Lechner, 321 F.Supp.2d at 1029 (citing Golembiewski v. Barnhart, 322 F.3d 912, 915-16 (7th Cir.2003)); see also Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir.2002) ("Without an adequate explanation, neither the applicant nor subsequent reviewers will have a fair sense of how the applicant's testimony is weighed.").

It is true, as the Commissioner notes, that the ALJ's credibility determination is ordinarily entitled to "special deference." Scheck v. Barnhart, 357 F.3d 697, 703 (7th Cir.2003). However, as I stated in my decision in this case, "the manner in which the ALJ reaches that conclusion is ... highly regulated." Lechner, 321 F.Supp.2d at 1027. Because the ALJ failed to comply with SSR 96-7p and to consider all of the relevant evidence and factors, the Commissioner's position on this issue was not "substantially justified." See Wates v. Barnhart, 288 F.Supp.2d 947, 953-54 (E.D.Wis.2003) (finding that ALJ's combination of errors in evaluating plaintiff's credibility made Stein inapplicable and rendered Commissioner's position not substantially justified); Zurawski v. Massanari, No. 99-C-2819, 2001 U.S. Dist. LEXIS 12725, at *9 (N.D.Ill. Aug.21, 2001) ("Where the [Commissioner's] defense of the ALJ's denial of benefits is contrary to the plain language of a Social Security Ruling, the [Commissioner's] position cannot be defined as substantially justified.") (internal quote marks omitted; alternation in original).

2. Evaluation of Dr. Lamberton's Opinion

I also remanded the matter so the ALJ could reconsider her rejection of Dr. Lamberton's report. I noted that the ALJ did not realize that plaintiff's care had been transferred from Dr. Hamblin to Dr. Lamberton. Thus, Lamberton's report could have been evaluated as that of a "treating source," entitled to special consideration. Lechner, 321 F.Supp.2d at 1031-33.

The Commissioner argues that her position on this issue was...