Wright v. Astrue

Filing 33

ORDER; 30 Plaintiffs Opposed Motion for Attorney Fees Under EAJA is DENIED, by Magistrate Judge Kathleen M. Tafoya on 10/16/15.(morti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 12–cv–01454–KMT
PAMELA WRIGHT,
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.

ORDER

The matter before the court is Plaintiff’s “Opposed Motion for Attorney Fees Under
EAJA.” (Doc. No. 30 [Mot.], filed Apr. 3, 2015.) Defendant, the Acting Commissioner of
Social Security (“Commissioner”), filed her response on April 24, 2015 (Doc. No. 31 [Resp.]),
and Plaintiff filed her reply on May 5, 2015 (Doc. No. 32 [Reply].)
Plaintiff seeks Attorney Fees pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d)(1)(A). (Mot. at 1–3.) Plaintiff argues that the disability decision of the
Administrative Law Judge (“ALJ”) and the Commissioner’s subsequent defense of that decision
before this court were not “substantially justified,” and that, as a result, Plaintiff is entitled to
recovery of her attorney fees amounting to $9,520.00. (Id. at 1–3, 4.) The Commissioner
counters that the Commissioner’s position, both at the administrative and judicial levels, was
substantially justified, therefore negating an award of attorney fees. The Commissioner argues
that, alternatively, the plaintiff’s alleged attorney fees are excessive. (Resp. at 1–2.)

LEGAL STANDARD
The EAJA awards attorney fees to a prevailing party in a Social Security Disability case
when the position of the United States, in this case the Commissioner, is not “substantially
justified.” See 28 U.S.C. § 2412(d)(1)(A). The government’s position is “substantially justified”
when the government’s position was “reasonable even if wrong.” Madron v. Astrue, 646 F.3d
1255, 1257 (10th Cir. 2011) (emphasis in original). The test is simply “one of reasonableness”
in law and fact. Id. (quoting Pierce v. Underwood, 487 U.S. 552, 563–65 (1988)). Though,
generally, EAJA fees should be awarded when the government’s underlying action was
unreasonable, it is possible for the government’s reasonable position during litigation to “cure”
an unreasonable government action. Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th Cir. 2007)
(citations and quotations omitted). The burden to establish that the government’s position was
substantially justified is on the government. Id. at 1169 (citation and quotations omitted).
FACTUAL AND PROCEDURAL BACKGROUND
During litigation over the ALJ’s decision, Plaintiff alleged that the ALJ failed to consider
the psychological findings of the Veterans Administration (“VA”) when constructing Plaintiff’s
Residual Functional Capacity (“RFC.”) (Doc. No. 21 [Opening Br.] at 20–21, filed Apr. 29,
2014.) The Commissioner defended the ALJ’s actions by arguing that the ALJ did consider the
VA’s findings, citing as evidence: 1) the ALJ’s recognition that the VA awarded benefits to the
plaintiff, and 2) the ALJ’s comparison of the VA’s findings with the consultative examiner’s
psychological findings. (Doc. No. 22 [Resp. Br.] at 14–15, filed May 19, 2014.) This court
found that the ALJ failed to consider and give weight to the VA’s psychological findings, which

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included a diagnosis of Post Traumatic-Stress Disorder (“PTSD”). (Doc. No. 28 [Order] at 6–7,
filed Mar. 20, 2015.) The court found that the ALJ did not “discuss Plaintiff’s PTSD
whatsoever, much less the limitations, if any, that the plaintiff’s PTSD poses to her [Residual
Functional Capacity]” and remanded for further procedure. (Id. at 7.)
ANALYSIS
Plaintiff argues that neither the ALJ’s failure to consider and incorporate into the RFC the
VA’s psychological findings, including a PTSD diagnosis, nor the Commissioner’s subsequent
defense of the ALJ’s failure was substantially justified. (Mot. at 3–4.) For the most part,
Plaintiff relies on the court’s reasoning to explain why the Commissioner’s positions during
administrative review and litigation were unreasonable. (See id.) Plaintiff offers only one
additional argument: that it was unreasonable for the Commissioner to take the position that “the
ALJ reasonably declined to include any additional limitations [in the RFC].” (Id. at 4.)
There is no dispute that Plaintiff is the prevailing party, and neither party argues that
there are any special circumstances counseling against the imposition of attorney fees. (See
generally id.; Resp.) The only questions for the court are: 1) whether the Commissioner’s
position was reasonable, and 2) if the Commissioner’s position was not reasonable, whether
Plaintiff is entitled to attorney fees amounting to $9,520.00. The first question, whether the
Commissioner’s position is reasonable, is really two separate inquiries: a) whether the ALJ’s
actions were reasonable, and b) whether the Commissioner’s defense of the ALJ’s actions was
reasonable.

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Whether the Government’s Position Was Reasonable
a. The Reasonableness of the ALJ’s Actions
The court first addresses the reasonableness of the Commissioner’s actions that were the
subject of the litigation—the ALJ’s failure to consider and incorporate into the RFC the VA’s
psychological findings, including a PTSD diagnosis. As the court stated in its Order, the ALJ’s
RFC analysis did not discuss Plaintiff’s PTSD whatsoever, despite finding that PTSD was one of
the plaintiff’s severe impairments. (Order at 7.) Nor did the ALJ explicitly discuss or address
the plaintiff’s impairments or limitations resulting from that PTSD, if any, including impairments
to or limitations of her thought process, communication, and social functioning. (See id.)
Nevertheless, the ALJ did: 1) list the claimant’s PTSD as a severe impairment at step two of the
disability review; 2) consider, at least in part, the VA’s findings; and 3) contrast the VA’s
findings with the findings of the consultative examining psychologist, whose findings conflicted
with the VA’s findings. (See Doc. No. 17 [AR] at 26, 30.) These considerations lead the court
to find that the ALJ’s omission of a discussion of these impairments during the RFC analysis was
reasonable, even if wrong.
b. The Reasonableness of the Government’s Defense of the ALJ’s Actions
Next, the court addresses the reasonableness of the Commissioner’s defense of the ALJ’s
actions. In its response brief at the litigation stage, the Commissioner argued that, contrary to the
plaintiff’s arguments, the ALJ did consider the VA’s psychological findings. First, the
Commissioner correctly noted that the ALJ acknowledged the VA’s award of benefits to the
plaintiff. (Resp. Br. at 14 [citing AR at 30].) The Commissioner then highlighted the ALJ’s
comparison of the VA’s findings with the findings of a consultative examining psychologist,

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who appeared to come to different conclusions than did the VA about the claimant’s
psychological impairments. (Id.) These facts provide sufficient grounds for the Commissioner
to argue that the ALJ did consider and discount the VA’s psychological findings, even if that
argument was ultimately rejected by this court. The Commissioner also properly cited the law
requiring the ALJ to consider another agency’s determination of disability and to explain why
the ALJ did not find that determination persuasive. (See id. at 14 [citing SSR 06-03p, 2006 WL
2329939, at *7 and Grogan v. Barnhart 399, F.3d 1257, 1262–63 (10th Cir. 2005)].) The court
therefore finds reasonable the Commissioner’s defense of the ALJ’s decision on this issue.
For the same reasons, the court also finds reasonable the Commissioner’s defense of the
ALJ’s failure to include in the RFC any limitations arising out of VA’s psychological findings,
including the PTSD diagnosis. Although Plaintiff is correct that the Commissioner must
consider all impairments when assessing a claimant’s RFC, the RFC expresses limitations, not
impairments. See 20 C.F.R. § 416.945 (“Your impairment(s), and any related symptoms, such as
pain, may cause physical and mental limitations that affect what you can do in a work setting.”);
SSR 96-8p, 1996 WL 374184 at *1, 3 (explaining that a claimant’s RFC is an assessment of the
most the claimant can do in a work setting on a regular and continuing basis despite the
limitations imposed by his or her impairments) (emphasis added). Further, the Commissioner is
correct that the limitations included in an RFC are ultimately up to the factfinder, which, in the
case of a social security disability decision, is the ALJ. See SSR 96-5p, 1996 WL 374183, *4
(“[A]n RFC assessment is the adjudicator’s ultimate finding based on a consideration of this
opinion and all the other evidence in the case record about what an individual can do despite his
or her impairment(s).”). Because the Commissioner reasonably believed the ALJ had considered

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and discounted the VA’s psychological findings, including the PTSD diagnosis, it was also
reasonable for the Commissioner to justify the absence of any related functional limitations in
the RFC as being a product of the ALJ’s determination that those psychological impairments did
not merit limitations.
CONCLUSION
Because the court finds that the ALJ’s actions and the Commissioner’s defense of those
actions were reasonable in law and fact, the court concludes that the Commissioner’s position
was substantially justified. The plaintiff is not therefore not entitled to attorney fees under
EAJA.
Accordingly, it is ORDERED
Plaintiff’s “Opposed Motion for Attorney Fees Under EAJA” (Doc. No. 30) is DENIED.
Dated this 16th day of October, 2015.

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