Weiskopf v. Commissioner of Social Security Administration

Filing 53

ORDER granting 47 Plaintiff's Application for Attorney Fees Under the Equal Access to Justice Act. Plaintiff is awarded $20,947.58 that shall be payable to Plaintiff and is subject to offset to satisfy any pre-existing debt that Plaintiff owes the United States. Signed by Magistrate Judge Michelle H Burns on 1/24/18. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner of the)
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Social Security Administration,
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Defendant.
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Stella Weiskopf,

CIV 13-1979-PHX-MHB
ORDER

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Pending before the Court is Plaintiff Stella Weiskopf’s application for attorney’s fees

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under the Equal Access to Justice Act (“EAJA”) (Doc. 47). After reviewing the arguments

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of the parties, the Court now issues the following ruling.

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On October 14, 2010, Plaintiff filed an application for disability insurance benefits

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and supplemental security income alleging disability beginning March 6, 2009. Plaintiff’s

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claims were denied initially and on reconsideration. Thereafter, Plaintiff requested a hearing

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before an administrative law judge, and a hearing was held on April 9, 2012. Afterwards, the

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ALJ issued a decision finding that Plaintiff was not disabled. The Appeals Council denied

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Plaintiff’s request for review, making the ALJ’s decision the final decision of the

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Commissioner. Plaintiff then sought judicial review of the ALJ’s decision pursuant to 42

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U.S.C. § 405(g).

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This Court, after reviewing the administrative record and the arguments of the parties,

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affirmed the decision of the ALJ, finding that: (1) the ALJ properly weighed the medical

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source opinion evidence; and (2) the ALJ provided a sufficient basis to find Plaintiff’s

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allegations not credible. Thereafter, Plaintiff appealed the Court’s decision to the Ninth

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Circuit Court of Appeals.

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On August 4, 2017, the Ninth Circuit issued its Mandate, finding that the ALJ’s

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decision was not supported by substantial evidence, and remanding this matter back to the

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district court with instructions to remand to the Commissioner for further proceedings.

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Specifically, the court found, as follows:

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The ALJ did not set forth clear, specific and legitimate reasons for rejecting
the medical opinions of Appellant’s treating pain management specialist and
treating neurologist in determining Appellant’s ability to do work-related
activities. These two treating physicians provided opinions of her functional
capacity. The ALJ rejected both opinions, assigning one of them “little weight”
and the other “limited weight.” But she failed to provide specific and
legitimate reasons for doing so. See Orn, 495 F.3d at 632 (“Even if the treating
doctor’s opinion is contradicted by another doctor, the ALJ may not reject this
opinion without providing specific and legitimate reasons supported by
substantial evidence in the record.” (quoting Redding v. Chater, 157 F.3d 715,
725 (9th Cir. 1998))). The ALJ recited portions of treating physicians’
treatment notes and then simply stated their opinions of Weiskopf’s functional
capacity were inconsistent with the notes. The ALJ failed to explain why the
conclusion she drew from the treatment notes—that Weiskopf can perform
limited, sedentary work—makes any more sense than the treating physicians’
conclusions. ...

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The ALJ thus did not sufficiently explained why the treating physicians’
opinions did not deserve “controlling weight,” and further, she completely
failed to explain why the opinions merited only “little” and “limited” weight.
Even when there is substantial evidence contradicting a treating physician’s
opinion such that it is no longer entitled to controlling weight, the opinion is
nevertheless “entitled to deference.” Orn, 495 F.3d at 633 (quoting SSR 96-2P,
at *4). To determine the amount of deference, the opinion “must be weighed
using all of the factors provided in 20 C.F.R. [§] 404.1527.” SSR 96-2P, at *4.
These factors include, among others, the length of the treatment relationship,
frequency of examination, and the nature and extent of the treatment
relationship. 20 C.F.R. § 404.1527(c). The ALJ did not engage in this analysis.

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Furthermore, the ALJ did not properly analyze Weiskopf’s evidence of
fibromyalgia. The ALJ did not consider fibromyalgia when determining
Weiskopf’s residual functional capacity, even though she was supposed to
consider all medically determinable impairments (MDIs) — even those that are
not severe. See 20 C.F.R. § 404.1545 (“We will consider all of your medically
determinable impairments of which we are aware, including your medically
determinable impairments that are not ‘severe,’ as explained in §§
404.1520(c), 404.1521, and 404.1523, when we assess your residual functional
capacity.”). The ALJ explained that she refused to do so because
“examinations d[id] not reveal any trigger point tenderness.” This analysis was
at odds with Social Security Ruling 12-2P. The ruling describes two ways that
fibromyalgia may be determined to be an MDI, only one of which requires
trigger point tenderness. The ALJ ignored the second possible basis for finding
that a claimant has an MDI of fibromyalgia:
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1) A history of widespread pain . . .;
2) Repeated manifestations of six or more FM symptoms, signs,
or cooccurring conditions especially manifestations of fatigue,
cognitive or memory problems (“fibro fog”), waking
unrefreshed, depression, anxiety disorder, or irritable bowel
syndrome; and
3) Evidence that other disorders that could cause these repeated
manifestations of symptoms, signs, or co-occurring conditions
were excluded.

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SSR 12-2P, at *3. She therefore failed to adequately explain why she did not
consider Weiskopf’s fibromyalgia in her residual functional capacity
determination.

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The EAJA allows “a prevailing party other than the United States fees and other

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expenses ... incurred by that party in any civil action ... unless the court finds that the position

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of the United States was substantially justified or that special circumstances make an award

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unjust.” 28 U.S.C. § 2412(d)(1)(A). An applicant for disability benefits becomes a prevailing

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party for the purposes of the EAJA if the denial of her benefits is reversed and remanded

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regardless of whether disability benefits are ultimately awarded. See Shalala v. Schaefer, 509

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U.S. 292, 300-02 (1993).

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The “position of the United States” includes both its litigating position and the “action

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or failure to act by the agency upon which the civil action is based.” 28 U.S.C. §

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2412(d)(2)(D). For this position to be substantially justified, it must be “justified in substance

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or in the main – that is, justified to a degree that could satisfy a reasonable person.” Pierce

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v. Underwood, 487 U.S. 552, 565 (1988) (holding that substantially justified means having

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a reasonable basis both in law and fact). In EAJA actions, the government bears the burden

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of proving that its position was substantially justified. See Gonzales v. Free Speech

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Coalition, 408 F.3d 613, 618 (9th Cir. 2005). However, “the government’s failure to prevail

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does not raise a presumption that its position was not substantially justified.” Kali v. Bowen,

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854 F.2d 329, 332 (9th Cir. 1988).

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When analyzing the government’s position for substantial justification, the Court’s

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inquiry should be focused on the issue that was the basis for remand and not the merits of

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Plaintiff’s claim in its entirety or the ultimate disability determination. See Flores v. Shalala,

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49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir.
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1998) (“The government’s position must be substantially justified at each stage of the

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proceedings.”).

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Plaintiff moves for an award of attorney’s fees and expenses under the EAJA in the

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amount of $20,947.58. Defendant opposes Plaintiff’s request, arguing that the government’s

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position was substantially justified.

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It is undisputed that Plaintiff is the prevailing party. Therefore, the issue before the

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Court is whether Defendant’s position in opposing Plaintiff’s appeal was “substantially

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justified.” Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). Having reviewed the

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parties’ pleading and the record in this matter, the Court concludes that Defendant’s decision

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to defend the ALJ’s determination was not substantially justified.

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In its response, the government argues that, although the Ninth Circuit did not agree,

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the Commissioner properly outlined facts from the record and relevant case law supporting

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her position that the reasons the ALJ gave to discount Drs. Sahai’s and Qureshi’s opinions,

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the opinion of PA Scholzen, and Plaintiff’s subjective complaints were valid and supported

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by the record. Defendant argues that the Ninth Circuit’s remand “appears generally based on

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the ALJ’s lack of proper articulation in identifying specifics regarding the opinions of Drs.

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Sahai and Qureshi and provided more discussion on Plaintiff’s fibromyalgia ... .” Defendant

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also contends that “[a]t least two reasonable minds—the ALJ and this Court’s—agreed that

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Plaintiff was not disabled under the strict standards of the Act. In light of these findings, the

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Court should find that the Commissioner’s position—both at the agency level and before this

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Court—had a reasonable basis in law and fact ... .”

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As stated previously, the Ninth Circuit determined that the ALJ’s decision was not

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supported by substantial evidence. The court specifically found that the ALJ failed to set

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forth clear, specific and legitimate reasons for rejecting the medical opinions of Plaintiff’s

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treating pain management specialist and treating neurologist in determining Plaintiff’s ability

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to do work-related activities. The court found that the ALJ rejected both opinions, assigning

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one of them “little weight” and the other “limited weight,” but she failed to provide specific

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and legitimate reasons for doing so. Further, the court found that the ALJ failed to properly
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analyze Plaintiff’s evidence of fibromyalgia, even though she was supposed to consider all

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medically determinable impairments – even those that are not severe.

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The ALJ’s errors in improperly weighing the medical source opinion evidence were

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a clear procedural errors and, as such, the Court cannot say that the Commissioner’s defense

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of the ALJ’s findings were substantially justified. See Garrison v. Colvin, 759 F.3d 995,

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1012-13 (9th Cir. 2014) (“an ALJ errs when he rejects a medical opinion or assigns it little

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weight while doing nothing more than ignoring it, asserting without explanation that another

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medical opinion is more persuasive, or criticizing it with boilerplate language that fails to

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offer a substantive basis for his conclusion”); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.

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2007) (“If the ALJ wishes to disregard the opinion of the treating physician, he or she must

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make findings setting forth specific, legitimate reasons for doing so that are based on

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substantial evidence in the record.”); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)

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(“Even if the treating doctor’s opinion is contradicted by another doctor, the Commissioner

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may not reject this opinion without providing specific and legitimate reasons supported by

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substantial evidence in the record for so doing.”).

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Defendant argues that the Ninth Circuit was primarily concerned with the ALJ’s lack

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of proper articulation. This argument is not persuasive. Legal errors such as those committed

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by the ALJ here are procedural errors, and defense of such is not substantially justified under

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established Ninth Circuit precedent.

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Defendant also contends that since both the ALJ and this Court agreed that Plaintiff

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was not disabled, the Court should find that the Commissioner’s position had a reasonable

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basis in law and fact. Although it is proper to consider the government’s past successes when

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evaluating substantial justification, see Meier v. Colvin, 727 F.3d 867, 873 (9th Cir. 2013)

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(citing Lewis v. Barnhart, 281 F.3d 1081, 1084 (9th Cir. 2002)), success at the district court

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level alone – without legitimate reasons supported by substantial evidence – does not make

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the government’s position substantially justified, see id. at 872-73.

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Here, the Commissioner has failed to produce sufficient reasons supported by

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substantial evidence to defend the government’s position. Thus, the Commissioner’s success
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at the district court, without more, fails to demonstrate that the government’s position is

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substantially justified. Therefore, Plaintiff is entitled to reasonable attorney’s fees under the

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EAJA.

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Because Plaintiff is entitled to attorney’s fees, the Court will determine whether the

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requested fees are reasonable. Plaintiff moves for an award of attorney’s fees and expenses

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under the EAJA in the amount of $20,947.58. Along with his application, Plaintiff’s counsel

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has filed an Itemization of Services and Affidavit indicating that the fee amount represents

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104.9 hours of attorney time, 7.4 hours of paralegal time, and expenses associated with this

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case. Defendant has not objected to the number of hours spent on this matter or to the hourly

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rate. The Court finds that Plaintiff's request for a total cumulative fee award of $20,947.58

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is reasonable. Plaintiff’s application for attorney’s fees under the Equal Access to Justice Act

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(“EAJA”) (Doc. 47) will be granted.

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Accordingly,

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IT IS ORDERED that Plaintiff’s application for attorney’s fees under the Equal

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Access to Justice Act (Doc. 47) is GRANTED;
IT IS FURTHER ORDERED that Plaintiff is awarded $20,947.58 pursuant to the
Equal Access to Justice Act;

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IT IS FURTHER ORDERED that, this award shall be payable to Plaintiff and is

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subject to offset to satisfy any pre-existing debt that Plaintiff owes the United States pursuant

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to Astrue v. Ratliff, 560 U.S. 586, 594 (2010)

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DATED this 24th day of January, 2018.

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