Gorringe v. Astrue

Filing 24

ORDER granting 19 Motion for Attorney Fees. ORDERED that plaintiff Christy R. Gorringe is awarded $7,328.89 in attorney's fees by Judge Philip A. Brimmer on 07/25/14.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 11-cv-01160-PAB
CHRISTY R. GORRINGE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on plaintiff Christy R. Gorringe’s motion for
attorney’s fees [Docket No. 19] brought pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), which defendant Carolyn W. Colvin (the
“Commissioner”) opposes [Docket No. 22]. The Commissioner believes she was
“substantially justified” in litigating this appeal. Cf. Wrenn ex rel. Wrenn v. Astrue, 525
F.3d 931, 934 (10th Cir. 2008) (“EAJA fees are assessed against the United States
when its actions were not ‘substantially justified.’”) (citing 28 U.S.C. § 2412(d)(1)(A)
(2006)).
I. ANALYSIS
“[A] claimant may seek to defray the cost of appealing from an agency decision
to a court under the . . . [EAJA] fee shifting statute.” Wrenn, 525 F.3d at 934. Under
the EAJA, “‘a court shall award to a prevailing party other than the United States fees
and other expenses . . . incurred by that party in any civil action . . ., brought by or

against the United States . . ., unless the court finds that the position of the United
States was substantially justified.” Manning v. Astrue, 510 F.3d 1246, 1249 (10th Cir.
2007) (quoting 28 U.S.C. § 2412(d)(1)(A) (2006) (omissions in original) (emphasis
omitted)). “Substantially justified” means “justified to a degree that could satisfy a
reasonable person” or, stated otherwise, that the government had a “reasonable basis
both in law and fact” for its position. Pierce v. Underwood, 487 U.S. 552, 565 (1988).
The standard is satisfied if there is a “genuine dispute.” Id. (citing Advisory Committee’s
Notes on 1970 Amendments to Fed. Rule Civ. Proc. 37(a)(4)). “Under the EAJA, the
government bears the burden of showing that its position was substantially justified.”
Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988).1
Here, the Court reversed and remanded the Commissioner’s decision that
plaintiff was not disabled because the ALJ (1) did not explain why he accorded the
greatest weight to the opinion of the State agency reviewing psychologist R. Brill; (2) did
not address medical opinions that plaintiff is moderately limited in certain cognitive
areas or explain how these moderate limitations are consistent with the ALJ’s finding
that plaintiff has the residual functional capacity (“RFC”) to perform “simple to semiskilled tasks on a sustained basis;” and (3) did not explain his conclusion that plaintiff’s
past employment as a receptionist was marked by “stress and pressures” that are “not
reflective of the job of receptionist as normally performed in the economy.” Gorringe v.

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The Court is to consider both the government’s position in the underlying
agency action and its position during any subsequent litigation. Hadden, 851 F.2d at
1267; see 28 U.S.C. § 2412(d)(2)(D) (stating that “‘position of the United States’ means,
in addition to the position taken by the United States in the civil action, the action or
failure to act by the agency upon which the civil action is based”).
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Astrue, No. 11-cv-01160-PAB, 2012 WL 4510715, at *3-5 (D. Colo. Sept. 30, 2012).
“Unless a treating source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant.” 20 C.F.R. § 404.1527(e)(2)(ii); see also
SSR 96-6P, 1996 WL 374180, at *2 (July 2, 1996) (ALJs “are not bound by findings
made by State agency or other program physicians and psychologists, but they may not
ignore these opinions and must explain the weight given to the opinions in their
decisions.”). “An ALJ is not entitled to pick and choose through an uncontradicted
medical opinion, taking only the parts that are favorable to a finding of nondisability.”
Id.; see also Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004). “[A] moderate
impairment is not the same as no impairment at all.” Haga v. Astrue, 482 F.3d 1205,
1208 (10th Cir. 2007).
The Commissioner argues that her position in this case was substantially
justified because (1) there was a genuine dispute as to whether the ALJ was required to
consider Dr. Brill’s finding of moderate limitations, since agency instruction manuals
provide that such a finding does not bear on functional capability; (2) the ALJ
addressed the opinion of Dr. Mark Green and, although he “failed to fully explain” how
Dr. Green’s findings were consistent with the RFC, he “offered at least a concise
evaluation” of Dr. Green’s opinion; and (3) the ALJ’s finding that plaintiff could perform
the job of receptionist did not conflict with the Dictionary of Occupational Titles (“DOT”)
or the testimony of the vocational expert (“VE”). Docket No. 22 at 3-5. The Court
considers each argument in turn.

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A. Dr. Brill’s Opinion
Dr. Brill completed a Mental Residual Functional Capacity Assessment in which
she found that plaintiff was moderately limited in her ability to understand and
remember detailed instructions, carry out detailed instructions, maintain attention and
concentration for extended periods, “complete a normal workday and workweek without
interruptions from psychologically based symptoms,” and “perform at a consistent pace
without an unreasonable number and length of rest periods.” R. at 290-91.
In support of the argument that the ALJ was not required to discuss these
findings, the Commissioner cites the Program Operations Manual System (“POMS”),
which instructs the medical consultant as follows: “Include no severity ratings or
nonspecific qualifying terms (e.g., moderate, moderately severe) to describe
limitations. Such terms do not describe function and do not usefully convey the extent
of capacity limitation.” POMS DI 24510.065.B.1.c, Section III of SSA-4734-F4-SUP Functional Capacity Assessment, available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510065 (emphasis in original). This
argument is legally flawed in several respects. First, the ALJ did not cite POMS in his
assessment of Dr. Brill’s opinion. See R. at 17. The Court may not rely on a post-hoc
rationale for the ALJ’s decision that is not evident in the decision itself. Haga v. Astrue,
482 F.3d 1205, 1207-08 (10th Cir. 2007).
Second, as the Court explained in its September 30, 2012 Order, the
Commissioner’s reading of the POMS conflicts with applicable Tenth Circuit precedent.
Gorringe, 2012 WL 4510715, at *4 (citing Haga, 482 F.3d at 1208; Baysinger v. Astrue,

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No. 11-cv-00333-WYD, 2012 WL 1044746, at *6 (D. Colo. March 28, 2012)).
Third, the cited statement appears in a directive to medical consultants on how
to fill out Part III of a Functional Capacity Assessment Form. POMS DI
24510.065.B.1.c. Dr. Brill’s finding appeared in Part I of the form. R. at 290. In
explaining how to complete Part I of the form, the POMS instructs medical consultants
to check the box indicating a moderate limitation “when the evidence supports the
conclusion that the individual’s capacity to perform the activity is impaired. NOTE:
The degree and extent of the capacity or limitation must be described in narrative
format in Section III.” POMS DI 24510.063, Completion of Section I of SSA-4734-F4SUP, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510063 (emphasis
in original). Other courts in this district have held that, where a medical consultant fails
to discuss in Part III a moderate limitation noted in Part I, the ALJ must nonetheless
consider the limitation to comply with the holding in Haga, 482 F.3d at 1208, that the
ALJ must consider all moderate impairments. Baysinger, 2012 WL 1044746, at *6;
McLeran v. Astrue, No. 09-cv-02924-LTB, 2010 WL 4318579, at *6 (D. Colo. Oct. 25,
2010). The ALJ was not required to adopt Dr. Brill’s finding of moderate limitations, but
was required to address them in formulating plaintiff’s RFC. The failure to do so and
the Commissioner’s reliance on the POMS to justify that failure are not reasonably
based in law.
B. Dr. Green’s Opinion
The Commissioner’s argument that the ALJ’s decision was reasonable because
he “address[ed]” Dr. Green’s opinion and “offered at least a concise evaluation” of it

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also lacks a basis in law. Since the ALJ did not give controlling weight to the opinion of
a treating physician, he was required to weigh Dr. Green’s opinion according to the
relevant factors and explain the weight he gave it. See 20 C.F.R. § 404.1527(e)(2)(ii).
The ALJ stated that he gave the opinion “great weight,” R. at 17, but failed to explain
why he gave the opinion such weight or to explain the inconsistency between the
opinion and the RFC. The ALJ had the burden of proving his RFC determination. See
Fischer-Ross v. Barnhart, 431 F.3d 729, 731 (10th Cir. 2005). By failing to explain how
Dr. Green’s opinion supported that determination, the ALJ did not carry his burden.
C. Step Five
The Commissioner argues that the ALJ was justified in finding that plaintiff could
perform the job of receptionist because the ALJ “alluded to” evidence that plaintiff told
her physician that her boss had been documenting minor errors on her part. Docket
No. 22 at 5. The Court has already rejected this argument. See Gorringe, 2012 WL
4510715, at *4. The ALJ stated that plaintiff “testified she believed her job at Kaiser
Permanente ended because she was ‘set up’ by coworkers and administrative staff to
make mistakes, and she had problems interacting with the public.” R. at 17. The ALJ
found that the “particular stress and pressures the claimant experienced at the Kaiser
Permanente job are not reflective of the job of receptionist as normally performed in the
economy, according to the DOT.” R. at 18.
The ALJ did not provide any support for this assertion, other than a general
reference to the DOT. The Court found that the VE’s testimony, which the
Commissioner also relies on, does not indicate that plaintiff’s previous receptionist

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position differs from the job as typically performed in the economy. Id. The ALJ bears
the burden at Step Five and cannot meet this burden by invoking the name of the DOT
or alluding generally to evidence without explaining the specific facts that support his
conclusion. See Trimiar v. Sullivan, 966 F.2d 1326, 1329 (10th Cir. 1992) (citing 20
C.F.R. §§ 404.1520(b)-(f)).
D. Attorney’s Fees
Plaintiff requests an award of $7,328.89 in attorney's fees accrued through the
litigation of the instant motion, constituting 41.25 hours of work at a rate of $177.67 per
hour. Docket No. 19-2 at 1-2; Docket No. 20 at 13; Docket No. 23 at 4. The
Commissioner does not dispute the amount requested. See Docket No. 22.
To determine a reasonable fee request, a court must begin by calculating the
“lodestar amount.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
The lodestar amount is the “number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The Court finds that the hours claimed are reasonable. In addition, the Court
notes that Mr. Noel undertook a substantial risk of loss in connection with the case,
devoted considerable time and effort in presenting plaintiff’s position, and obtained a
favorable result for plaintiff.
In light of the hours worked and the fact that the Commissioner does not dispute
the amount of fees requested, the Court concludes that an attorney’s fee of $7,328.89
is reasonable.

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II. CONCLUSION
Accordingly, it is
ORDERED that Plaintiff’s Motion for Attorney Fees Under Equal Access to
Justice Act (EAJA) 28 U.S.C. § 2412(d) [Docket No. 19] is GRANTED. It is further
ORDERED that plaintiff Christy R. Gorringe is awarded $7,328.89 in attorney’s
fees.

DATED July 25, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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