Wates v. Barnhart

• Decision Date: 17 October 2003
• Docket Number: No. 02-C-0324.,02-C-0324.
• Citation: 288 F.Supp.2d 947
• Parties: Patricia J. WATES, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Eastern District of Wisconsin

Page 947

288 F.Supp.2d 947

Patricia J. WATES, Plaintiff, v. Jo Anne B. BARNHART, Commissioner of the Social Security Administration, Defendant.

No. 02-C-0324.

United States District Court, E.D. Wisconsin.

October 17, 2003.

Lynn B Eskin, for Plaintiff.

Lennie Lehman, for Defendant.

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

ADELMAN, District Judge.

I. BACKGROUND

Plaintiff Patricia Wates 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 her application for disability benefits under the Social Security Act. Plaintiff applied for benefits on September 3, 1999, claiming that she was unable to work due to depression, anxiety, stomach pain and reflux disease. Her application was denied initially and on reconsideration. She sought and obtained a hearing before an Administrative Law Judge (ALJ), but in a decision dated September 28, 2001, the ALJ also denied her claim. Following rejection of her request for review by the Appeals Council, plaintiff commenced the instant action.

The matter was assigned to a magistrate judge, who recommended that the Commissioner's decision be affirmed. Plaintiff objected to the recommendation, and on June 30, 2003, I reversed the Commissioner's decision and remanded the matter for further proceedings. Wates v. Barnhart, 274 F.Supp.2d 1024 (E.D.Wis.2003). Plaintiff now moves for an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.

II. 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). Her application was timely filed, and the Commissioner points to no "special circumstances" that would make an award of fees unjust. However, the Commissioner opposes plaintiff's fee request on the grounds that the government's position was "substantially justified."

While the fact that the Commissioner did not prevail 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." 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 question, 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 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.

III. DISCUSSION

A. Significance of Magistrate Judge's Recommendation

The Commissioner first argues that her position was substantially justified because the magistrate judge recommended that the ALJ's decision be affirmed. While the decisions of intermediate judges may be relevant under the EAJA, they are not determinative. I must make my own determination on this issue. Harris v. Barnhart, 259 F.Supp.2d 775, 781 (E.D.Wis. 2003); Henderson v. Barnhart, 257 F.Supp.2d 1163, 1168-69 (E.D.Wis.2002).

B. Commissioner's Arguments Regarding Errors in ALJ's Decision

The Commissioner next argues that her position was substantially justified despite the fact that I found three errors in the ALJ's decision warranting reversal. I address each error in turn.

1. Evaluation of Treating Source Opinions

First, I concluded that the ALJ had erred in her evaluation of the opinions of plaintiff's treating physicians, Drs. McCreary and Baker. In her brief opposing fees, the Commissioner states: "While the Court notes that the ALJ did not err in declining to adopt the opinions of Drs. Baker and McCreary, the Court concludes that the ALJ erred by `failing to explain why she made findings at odds with the treating source opinions.'" (Def. Resp. Brf. at 4, quoting Order at 20.) The Commissioner then claims that the Court "suggest[ed] that the ALJ was required to discuss each factor from a treating physician's opinion and explain why she did not include it in her RFC." (Def. Resp. Brf. at 4.) This, the Commissioner contends, is not required.

The Commissioner misreads my decision. I did not reverse because the ALJ failed to discuss every piece of evidence in the record, or even every aspect of the doctors' opinions. Rather, I reversed because the ALJ committed an error of law by failing to properly evaluate the treating sources' opinions, as required by the Commissioner's own regulations.

Treating source opinions must be given special consideration in social security cases. Dominguese v. Massanari, 172 F.Supp.2d 1087, 1100 (E.D.Wis.2001). If well-supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with other substantial evidence, the ALJ must afford such opinions controlling weight. Id. (citing SSR 96-8p). Even if the ALJ finds that the opinion should not be afforded controlling weight, it may nevertheless be entitled to the greatest weight under SSR 96-2p. Regardless of the weight the ALJ ultimately gives the treating source opinion, she must always "give good reasons" for her decision, 20 C.F.R. § 404.1527(d)(2).

In this case, the ALJ stated: "Dr. McCreary's and Dr. Baker's opinions with regard to the claimant's residual functional capacity are generally consistent with the record as a whole and supports [sic] the undersigned's finding of residual functional capacity as stated above." (Tr. at 16.) She further stated that in making her findings she had "given significant weight to the medical source statements of the claimant's treating physicians, Dr. McCreary and Dr. Baker." (Tr. at 16.)

However, it was obvious that she did not do so. Drs. Baker and McCreary imposed restrictions far more severe than those adopted by the ALJ. Therefore, I held: "Because the ALJ failed to explain how her findings could be squared with the contrary opinions of plaintiff's treating doctors, which she claimed to afford `significant weight,' she did not `give good reasons' for her decision. 20 C.F.R. § 404.1527(d)(2).... Far from providing `good reasons,' the ALJ seemed not to even notice the conflict, claiming that she gave these opinions significant weight when, in light of her findings, that was not possible." (Order at 20-21.)

The Commissioner argues that the ALJ's discussion of Drs. McCreary's and Baker's medical records shows that the ALJ did not ignore their opinions. But I did not reverse the ALJ's decision because she failed to discuss these opinions; I reversed because her discussion made no sense. The ALJ did more than make "a confusing remark" in her decision, as the Commissioner contends. (Def. Resp. Brf. at 5.) She either fundamentally misconstrued the treating source opinions or simply disregarded their contents. In either case, she committed a clear error.

The Commissioner contends that despite this mistake the remainder of the ALJ's decision was reviewable. She argues that "it was clear that Dr. Baker's and Dr. McCreary's opinions were not consistent with the record as a whole," and "that there was no reason to remand on this issue when there was no reason to believe it would lead to a different result." (Def. Resp. Brf. at 5.) This was far from clear. In any event, in reviewing an ALJ's decision, I am confined to the reasons she provided; I cannot supply my own reasons or rely on the Commissioner's post hoc rationalizations. See Castrejon v. Apfel, 131 F.Supp.2d 1053, 1057 (E.D.Wis.2001). The ALJ said that these opinions were consistent with the record as a whole and were entitled to significant weight. Thus, there was every reason to believe that the ALJ could come to a different conclusion on remand. If accepted, the treating source opinions in this case would lead to the conclusion that plaintiff was disabled.¹

The Commissioner next claims that "three other doctors of record made findings consistent with the ALJ's RFC, and the ALJ cited those opinions." (Id. at 6, citing Tr. at 13, 16.) Thus, she contends, it was reasonable to defend the ALJ's decision despite the "confusing" language concerning the treating source opinions.

The Commissioner is ostensibly referring to Dr. Nichols, who saw plaintiff at the request of the Administration, and Drs. Warrior and Matkom, who did paper reviews for the Administration. The ALJ did not mention Drs. Warrior and Matkom by name, but...