Thompkins v. Astrue

Filing 43

MEMORANDUM Opinion and Order Signed by the Honorable Martin C. Ashman on 8/2/2011:Mailed notice(tlp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LATASHA THOMPKINS,

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Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

Case No. 09 C 1339
Magistrate Judge
Martin C. Ashman

MEMORANDUM OPINION AND ORDER
Plaintiff, Latasha Thompkins ("Plaintiff"), brings this motion for attorney's fees under the
Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Defendant, Michael Astrue, the
Commissioner of the Social Security Administration ("Commissioner"), opposes the motion.
The parties have consented to have this Court conduct any and all proceedings in this case,
including entry of final judgment pursuant to 28 U.S.C. § 636(c) and N.D. Ill. R. 73.1(c). For the
reasons stated below, this Court grants Plaintiff's motion.

I.

Background

Plaintiff filed an application for Disability Insurance Benefits ("DIB") on July 5, 2005,
alleging that she had become disabled on January 1, 2005. After the Social Security
Administration ("SSA") denied her application on December 8, 2005, she filed a request for
reconsideration, which was also denied. Following a hearing on April 20, 2007, the
administrative law judge ("ALJ") denied Plaintiff's claim on October 25, 2007. The Appeals

Council denied review, and Plaintiff appealed the Commissioner's decision to this Court. On
December 6, 2010, the Court reversed the Commissioner's decision in part and remanded for
further consideration. Plaintiff now seeks attorney's fees under the EAJA.

II.

Legal Standard

The EAJA provides that a district court may award "fees and other expenses" where
(1) the claimant was a prevailing party, (2) the government's position was not substantially
justified, (3) there are no special circumstances that make an award unjust, and (4) the claimant
filed a timely and complete application with the district court. 28 U.S.C. § 2412(d)(1)(A);
Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). The requesting party must show that the
fees sought are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A position is
"substantially justified if it has a reasonable basis in fact and law, and if there is a reasonable
connection between the facts alleged and legal theory" propounded. Stewart, 561 F.3d at 683
(citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The Commissioner bears the burden of
proving that both his pre-litigation conduct, including the ALJ's decision, and his litigation
position were substantially justified. Stewart, 561 F.3d at 683. Proving this requires that the
government show "its position was grounded in '(1) a reasonable basis in truth for the facts
alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection
between the facts alleged and the legal theory propounded.'" Bricks, Inc. v. U.S. Env't Prot.
Agency, 426 F.3d 918, 922 (7th Cir. 2005) (quoting United States v. Hallmark Constr. Co.,
200 F.3d 1076, 1080 (7th Cir. 2000)); Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir.
2006).

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Under Astrue v. Ratliff, — U.S. — , 130 S.Ct. 2521 (2010), an award under the EAJA
belongs to the plaintiff and can be offset to satisfy a pre-existing debt the plaintiff owes the
United States ("the Government"). After the award is entered, if the Government determines that
plaintiff owes no such debts, the Government will direct that the fee award and expenses be
made payable to plaintiff's attorney pursuant to the EAJA assignment signed by the parties. The
award for costs is also payable to plaintiff.

III. Discussion
The Court remanded the Commissioner's decision, in part, because the ALJ failed to state
the weight he assigned to the opinion of Plaintiff's treating psychiatrist, Dr. Persina, or to the
consulting psychologist, Dr. Ghadiali. The ALJ concluded that Dr. Persina's written opinion was
not entitled to controlling weight based on inconsistencies between it and the notes she made
while treating Plaintiff. The Court agreed with the Commissioner that the ALJ was entitled to do
so but found that his failure to assign any specific weight to the medical source opinions was
erroneous. Notwithstanding, the Commissioner now contends that the government's litigation
position on this issue was substantially justified.
As the Court noted in its earlier decision, the Commissioner did not address Plaintiff's
argument that the ALJ erred by failing to assign specific weights to the medical opinions. Thus,
the Commissioner essentially waived any objection to Plaintiff's claim in the underlying
litigation. See Laborers' Int'l Union of North Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir.
1999) (stating that arguments that are not presented in response to a motion for summary
judgment are waived). The Commissioner does not contend that the Court overlooked the

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Government's argument on this issue or explain how the failure to address an issue that gave rise
to reversible error constitutes a reasonable litigation position for EAJA purposes. Although the
Commissioner contends that the Court could have inferred that the ALJ gave little or no weight
to Dr. Persina's opinion, the Court rejected the same argument in its prior order: an "ALJ's
decision cannot leave the weight given to the treating physician's testimony to mere inference:
the decision must be sufficiently specific to make clear to any subsequent reviewers the weight
the ALJ gave to the treating source's medical opinion and the reasons for that weight." Ridinger
v. Astrue, 589 F. Supp.2d 995, 1006 (N.D. Ill. 2008); see also Moore v. Astrue, No. 08 CV 5180,
2010 WL 2166629, at *8-9 (N.D. Ill. May 27, 2010).
Evaluating medical source opinions is a fundamental duty of an ALJ. See Young v.
Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004) ("Weighing conflicting evidence from medical
experts . . . is exactly what the ALJ is required to do."). As the regulations make clear, this
encompasses all of the medical opinions in the record. 20 C.F.R. § 404.1527(d) ("[W]e will
evaluate every medical opinion we receive."). Social Security Ruling 96-2p also directs an ALJ
to weigh the opinion of a treating medical source like Dr. Persina. See SSR 96-2p (stating that
an ALJ's decision "must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source's medical opinion and the reasons for that
weight."). When an ALJ decides not to give controlling weight to a treating physician's opinion,
he must still assign it a specific weight. Social Security Ruling 96-2p states that under such facts
"[t]reating source medical opinions are still entitled to deference and must be weighed using all
of the factors provided in 20 C.F.R. 404.1527 and 416.927." SSR 96-2p. Further, SSR 96-6p
states in regard to opinions of consulting psychologists that an ALJ "must explain the weight

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given to these opinions in their decisions." SSR 96-6p. The ALJ's failure to do so in this case
was erroneous, and it prevented the Court from fully addressing the merits of Plaintiff's further
arguments concerning the ALJ's listing decision at step three, or from determining the basis for
the ALJ's failure to address the VE's testimony concerning Plaintiff's need for work breaks.
The Court also reversed the ALJ's decision based on the work-break issue. The ALJ
elicited testimony from the VE on Plaintiff's need for unscheduled breaks, received a response
from the VE stating that such limitations would make any employment impossible, and then
failed to address the VE's conclusion in his decision. As the Commissioner notes, Plaintiff's
argument on this issue was far from clear in her motion for summary judgment. This was true to
some degree because Plaintiff appeared to link her argument to a vaguely-stated suggestion that
the ALJ did not properly assess her credibility. In the absence of a clear argument on this topic,
however, the Court found that her claim was more accurately construed as one based on the
ALJ's failure to weigh Dr. Persina's opinion. According to Plaintiff, Dr. Persina's report
contained evidence supporting her need for breaks, and by failing to weigh that report, the ALJ
had no basis to ignore the VE's testimony that this limitation would preclude all employment.
The Government's earlier response linked Plaintiff's claim to the ALJ's credibility
decision, and the Commissioner now argues that the Court recognized that this was a reasonable
position because it rejected Plaintiff's credibility argument. (Def's. Resp. at 7.) As noted just
above, however, the Court did not determine that it was reasonable to assume that Plaintiff's
argument was based, at least in its entirety, on the credibility issue. Although the Court found
that, insofar as any credibility argument was even asserted, Plaintiff failed to show that the ALJ
erred in his assessment. However, the Court also specifically noted that Plaintiff only obliquely

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raised that issue. The full reasoning surrounding Plaintiff's argument could have been more
carefully stated, but she did base her claim in large part on Dr. Persina's report.1
The Court points out in this regard that the Commissioner recognized that this was what
Plaintiff was stating in her motion for summary judgment. See Response at 8-9 ("[S]he
nonetheless argues that the ALJ should have credited Dr. Persina's opinion, which Plaintiff
characterizes as independent evidence supporting the conclusion that she had difficulty staying
on task."). In response, the Commissioner set forth two somewhat interrelated arguments. (Id.)
First, the Government relied on a contention that the ALJ properly discounted the treating
psychiatrist's opinion, an argument that the Court rejected for the reasons stated above. Second,
the Commissioner stated that part of this devaluation was correctly based on the ALJ's decision
that Plaintiff's testimony was not credible. According to the Commissioner, Dr. Persina's
professional opinion was based on Plaintiff's subjective complaints to her; thus, by correctly
finding that Plaintiffs' hearing testimony was not entirely credible, the ALJ stated a proper basis
for discounting the value of the psychiatrists's report.
This argument does not show why the Commissioner's litigation position was
substantially justified. Even if the ALJ could have relied on his credibility assessment of
Plaintiff to evaluate Dr. Persina's opinion, the Commissioner overlooks that he did not, in fact,
do so in this case. Instead, the ALJ gave no reason at all for not giving a specific weight to the
treating physician's evaluation of Plaintiff's psychiatric condition. "Neither the Commissioner

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The Commissioner claims at this point that "it was never clear to begin with" that
Plaintiff's alleged need for unscheduled breaks "should be linked" to Dr. Persina's medical
opinion at all. Whether it should have been linked in this way or not, that is exactly what
Plaintiff did.
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nor the court may supply reasons for the ALJ." Baker ex rel. Baker v. Barnhart,
410 F. Supp.2d 757, 766 (E.D.Wis. 2005); see also A.H. ex rel. Williams v. Astrue,
No. 09 C 6981, 2011 WL 1935830, at *9 (N.D. Ill. 2011 May 18, 2011). As a result, the ALJ
failed to "build a logical bridge between the evidence and his [apparent] conclusion" that no
independent evidence existed that required him to follow through on this question to the VE.
Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009); see also Sarchet v. Chater, 78 F.3d 305,
307 (7th Cir. 1996) ("[W]e cannot uphold a decision by an administrative agency . . . if, while
there is enough evidence in the record to support the decision, the reasons given by the trier of
fact do not build an accurate and logical bridge between the evidence and the result.").
More fundamentally, the Commissioner assumes that Dr. Persina's opinion cannot, or
perhaps should not, be meaningfully differentiated from Plaintiff's statements at the hearing and
that the ALJ's assessment of Plaintiff's hearing testimony necessarily applies to the subjective
complaints she made to her psychiatrist. However, the Commissioner has not shown any reason
why this is the case.2 Neither the ALJ nor the Court has any idea of the full scope of what
Plaintiff told Dr. Persina in her monthly treatment sessions that began in May, 2005, or the
degree to which those statements mirrored what Plaintiff said to the ALJ. The record contains
Dr. Persina's treatment notes indicating brief comments Plaintiff made to her psychiatrist. But it
is unreasonable to assume that Dr. Persina's notes were intended to provide a transcript of the
entire range of Plaintiff's statements. What else she told Dr. Persina, or why those undisclosed
comments were substantially similar to her hearing testimony, is speculative.

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The Court notes that the Commissioner did not present a developed argument on this
issue in the underlying litigation, stating only that "Dr. Persina's opinion appeared to be
inextricably linked to Plaintiff's credibility." (Def's. Resp. at 9.)
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As the report of a qualified medical expert, moreover, the Court presumes that
Dr. Persina's evaluation is not merely an uncritical reflection of Plaintiff's complaints but is the
assessment of a treating psychiatrist based, at least to some degree, on her independent, medical
expertise. Thus, the fact that the ALJ did not find Plaintiff's testimony at the hearing to be fully
credible does not mean that Dr. Persina's evaluation of statements Plaintiff made in their
treatment sessions should be found lacking in all credibility. Without assigning any weight to
Dr. Persina's opinion, the ALJ could not conclude based on Plaintiff's hearing testimony that no
evidence supported her psychiatrist's medical report. The ALJ was required to evaluate
Dr. Persina's opinion based on the standards laid out in the regulations, and any finding that it
was entitled to no weight at all merely because of what the Plaintiff stated in the hearing failed to
take those standards into consideration.3

IV. Fee Calculation
Plaintiff has submitted an itemized statement showing 41.8 attorney hours, and 1.3 legal
assistant hours. She also seeks $14.50 in court costs. The Commissioner does not dispute the
reasonableness of these claims. For civil actions commenced after March 29, 1996, the EAJA's

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Plaintiff also argued that remand was necessary at step five because the ALJ failed to
ask the vocational expert if his testimony that she could perform jobs that required a level 2
reasoning was consistent with the ALJ's residual functional capacity ("RFC") finding. Relying
on Terry v. Astrue, 580 F.3d 471 (7th Cir. 2009), the Commissioner argued that the ALJ's failure
to make an inquiry was merely harmless error. The Court agreed, albeit on different grounds.
As the Court noted, Terry involved level 3 reasoning, and the Court was required to undertake an
independent analysis of the issues and caselaw involved in this matter. This included resolving a
split between courts in this Circuit without guidance from the Commissioner. Compare Simms v.
Astrue, 599 F. Supp.2d 988 (N.D. Ind. 2009) with Masek v. Astrue, No. 08 C 1277, 2010 WL
1050293 (N.D. Ill. March 22, 2010).
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statutory rate for attorney's fees is $125.00 per hour. 28 U.S.C. § 1412(d)(2)(A). Plaintiff seeks
an enhancement of that rate based on governmental CPI numbers in the amount of $172.50 and
states that the legal assistant should be billed at $85 per hour. See 28 U.S.C. § 1412(d)(2)(A)(ii).
Again, the Commissioner does not oppose these figures. Accordingly, the Court finds that
Plaintiff is entitled to EAJA fees in the amount of $7,335.50, including $7,210.50 for attorney
hours (41.8 x $172.50), $110.50 for legal assistant hours (1.3 x $85), and $14.50 in costs.

V.

Conclusion

For the reasons stated above, the Court finds that the Commissioner's position in the
underlying litigation was not substantially justified and that the fees and costs requested by
Plaintiff are reasonable. Therefore, the Court grants Plaintiff's request for attorney's fees and
costs in the amount of $7,335.50 to be paid to Plaintiff.
ENTER ORDER:

Dated: August 2, 2011.

__________________________________________
MARTIN C. ASHMAN
United States Magistrate Judge

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