Samuel v. Barnhart

• Decision Date: 29 April 2004
• Docket Number: No. 02-C-0569.,02-C-0569.
• Citation: Samuel v. Barnhart, 316 F.Supp.2d 768 (E.D. Wis. 2004)
• Court: U.S. District Court — Eastern District of Wisconsin
• Parties: Steven A. SAMUEL, Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration, Defendant.

316 F.Supp.2d 768

Steven A. SAMUEL, Plaintiff, v. Jo Anne BARNHART, Commissioner of the Social Security Administration, Defendant.

No. 02-C-0569.

United States District Court, E.D. Wisconsin.

April 29, 2004.

COPYRIGHT MATERIAL OMITTED

Frederick J. Daley, Jr., Chicago, IL, for Plaintiff.

Nora S. Barry, Milwaukee, WI, for Defendant.

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

ADELMAN, District Judge.

Plaintiff Steven Samuel brought this action pursuant to 42 U.S.C. § 405(g) challenging the decision of defendant Jo Anne Barnhart, Commissioner of the Social Security Administration, denying his application for disability benefits under the Social Security Act. I reversed the Commissioner's decision, Samuel v. Barnhart, 295 F.Supp.2d 926 (E.D.Wis.2003), and plaintiff now moves for an award of attorney's fees pursuant to 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" in this litigation. 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). The application was timely filed, and the Commissioner points to no special circumstances making an award unjust. However, the Commissioner argues that the motion should be denied because her position was "substantially justified." She also contends that the amount of the request is excessive and that any award should be reduced accordingly.

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 must demonstrate 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.

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 prelitigation 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 prelitigation conduct was not substantially justified even though its litigating position may have been substantially justified and vice versa. In other words, the fact that the government's litigating position was substantially justified does not necessarily offset prelitigation conduct that was without a reasonable basis.

Marcus, 17 F.3d at 1036.

B. Analysis

In the present case, I reversed and remanded the ALJ's decision for four reasons. First, the ALJ's RFC determination was flawed because the ALJ (a) provided no medical support for his finding, (b) failed to consider the report of one treating source, and (c) improperly evaluated the opinions of two other examining/treating physicians. Second, the ALJ erred in finding that plaintiff did not suffer from a severe mental impairment. Third, the ALJ's evaluation of plaintiff's credibility was flawed. And fourth, the ALJ's hypothetical question to the vocational expert (VE) failed to include all of plaintiff's impairments. I address each under the substantial justification standard.

1. RFC

The ALJ's RFC determination was flawed in three respects.

a. Failure to Cite Medical Evidence

First, the ALJ failed to cite any medical evidence supporting his finding that plaintiff was capable of performing the exertional requirements of light work. Samuel, 295 F.Supp.2d at 944. One such requirement is the ability to stand/walk for a total of about six hours out of an eight hour work day. SSR 83-10; 20 C.F.R. § 404.1567(b). In considering the various medical opinions in this case, the ALJ decided to give substantial weight to the report of Dr. Ward Jankus, a consulting physician for the Administration. (Tr. at 28.) However, Dr. Jankus stated that plaintiff's "weight bearing capacity is limited in the range of 2-3 hours out of an 8 hour period with breaks once or twice per hour to be able to sit down." (Tr. at 320.) This is insufficient to meet the requirement of light work. Samuel, 295 F.Supp.2d at 944. The ALJ failed to cite any other medical evidence supporting this finding, and, aside from the opinions of two consulting, non-examining physicians (Tr. at 310, 324), which the ALJ specifically rejected (Tr. at 28), there was none. Plaintiff's doctors concluded that he could stand/walk less than two hours out of an eight hour day. (Tr. at 372, 392.) By failing to include in his narrative discussion a description of how the medical evidence supported his finding, the ALJ committed a clear error of law. See SSR 96-8p ("The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) ...."); see also Koschnitzke v. Barnhart, 293 F.Supp.2d 943, 952 (E.D.Wis.2003) (finding that ALJ committed error of law by failing to comply with SSR).

The Commissioner responds that in determining RFC the ALJ need not rely on the opinion of a doctor. (Def.'s EAJA Resp. at 4.) She cites Diaz v. Chater, 55 F.3d 300, 306 n. 2 (7th Cir.1995), where the court stated:

Mr. Diaz claims that the ALJ erred in making the "medical judgment" of his RFC. According to Mr. Diaz, the ALJ should have relied solely on the opinions of physicians. The determination of RFC, however, is an issue reserved to the SSA. See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). In determining what a claimant can do despite his limitations, the SSA must consider the entire record, including all relevant medical and nonmedical evidence, such as a claimant's own statement of what he or she is able or unable to do. 20 C.F.R. § 404.1545(a); 20 C.F.R. § 416.945(a). That is, the SSA need not accept only physicians' opinions. In fact, if conflicting medical evidence is present, the SSA has the responsibility of resolving the conflict. Stephens v. Heckler, 766 F.2d 284, 287 (7th Cir.1985).

The Commissioner mis-reads my decision. I did not hold that the ALJ erred because he failed to adopt and solely rely on a medical report in determining RFC. "The RFC assessment must be based on all of the relevant evidence in the case record[.]" SSR 96-8p. But this does not mean that the ALJ can make an RFC finding without citing any medical evidence. As SSR 96-8p plainly states:

The RFC assessment must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)....

In all cases in which symptoms, such as pain, are alleged, the RFC assessment must:

• Contain a thorough discussion and analysis of the objective medical and other evidence, including the individual's complaints of pain and other symptoms and the adjudicator's personal observations, if appropriate;

• Include a resolution of any inconsistencies in the evidence as a whole; and

• Set forth a logical explanation of the effects of the symptoms, including pain, on the individual's ability to work.

. . . . .

Medical opinions. The RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.

The ALJ clearly ran afoul of this Ruling in the present case. He did not "consider and address medical source opinions" and failed to reconcile the conflict between his finding and Dr. Jankus's report. Thus, the ALJ committed an error of law, see Prince v. Sullivan, 933 F.2d 598, 602 (7th Cir.1991), and so understood, the Commissioner's position can find no support in Diaz.

The Commissioner also contends that the ALJ "weighed the opinions of record and reasonably formulated his RFC in light of the record evidence." (Def.'s EAJA Resp. at 4.) While it is the job of the ALJ and not the court to weigh the evidence and formulate the claimant's RFC, the court must reverse where the ALJ's RFC determination conflicts with the medical evidence credited by the ALJ. See Young v. Barnhart, 362 F.3d 995, 1002 (7th Cir.2004) (reversing where ALJ's RFC determination failed to take into account limitations contained in medical reports ALJ credited). In such a situation, the ALJ has "failed to build the `accurate and logical bridge from the evidence to his conclusion so that, as a reviewing court, we may assess the validity of the agency's ultimate findings and afford a claimant meaningful judicial review.'" Id. at 1003 (quoting Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir.2002)). In the present case, the ALJ credited the report of Dr. Jankus, then adopted an RFC determination that ignored Jankus's conclusion as to plaintiff's weigh bearing ability. Therefore, the Commissioner's claim...