Santoro v. Astrue

Filing 35

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 5/4/2011: Mailed notice.(is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOHN SANTORO,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social Security,

Defendant.

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No. 09 C 2297
Magistrate Judge Sheila Finnegan

MEMORANDUM OPINION AND ORDER
Plaintiff John Santoro filed an action seeking review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416,
423(d). On February 7, 2011, the Court remanded the case to the Administrative Law
Judge (“ALJ”) for further evaluation. Plaintiff now seeks to recover his attorneys’ fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), arguing that the
Commissioner’s position in defending the decision of the ALJ was not “substantially
justified.” For the reasons set forth here, the application for fees is granted.
BACKGROUND
Plaintiff applied for DIB on April 7, 2006, alleging that he became disabled on March
30, 2005 from an array of ills, principally discogenic and degenerative back disorders. The
Social Security Administration (“SSA”) denied his application initially and on
reconsideration. Following an administrative hearing, the ALJ found that Plaintiff has the
residual functional capacity (“RFC”) to perform light work with only occasional climbing,

balancing, stooping, kneeling, crouching, crawling, and overhead reaching with his left arm,
and is not disabled within the meaning of the Act. The SSA Appeals Council denied
Plaintiff’s request for review, so he sought relief in this Court under 42 U.S.C. § 405(g).
In support of his motion to reverse the Commissioner’s decision, Plaintiff argued that
the ALJ (1) erred in finding that his condition significantly improved following a June 28,
2005 microlaminectomy surgery, (2) improperly weighed the medical opinions of record,
and (3) issued a decision not supported by substantial evidence. The Court agreed with
the first two arguments, noting that the ALJ “barely mentioned” the medical findings of
treating physician Dr. James B. Boscardin, and failed to determine what weight to give his
opinions. Santoro v. Astrue, No. 09 C 2297, 2011 WL 528257, at *8 (N.D. Ill. Feb. 7, 2011).
The Commissioner attempted to “salvage the ALJ’s conclusion by supplying his own,
lengthy discussion of Dr. Boscardin’s treatment records,” but the Court observed that “[a]n
agency’s lawyers cannot ‘defend the agency’s decision on grounds that the agency itself
had not embraced.’” Id. (quoting Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010)).
The parties agreed that the ALJ did discuss Dr. Boscardin’s April 10, 2008 opinion
that Plaintiff had continuing symptoms “compatible with chronic radiculopathy” and was
unable to work due to this pain. In rejecting this opinion, however, the ALJ merely cited
boilerplate language regarding 20 C.F.R. § 404.1527(d), and never mentioned that Dr.
Boscardin, who had treated Plaintiff since 1993 and performed all four of his back
surgeries, appeared to be the only board-certified orthopaedic surgeon to examine Plaintiff.
Id. at *9. Nor did the ALJ discuss any of Dr. Boscardin’s treatment notes prior to April
2008. Id. The Court rejected Plaintiff’s perfunctory and undeveloped third argument that

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the medical evidence and testimony “overwhelmingly support a finding that Mr. Santoro is
disabled,” but remanded the case based on the other cited errors. Id. at *10.
On March 25, 2011, Plaintiff filed a timely application for fees in the amount of
$7,149.69.1 (Doc. 27 ¶ 7; Doc. 27-1). See Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
The Commissioner objects that Plaintiff is not entitled to any fees in this case.
DISCUSSION
A.

Standard of Review
Under the EAJA, a court may award attorneys’ fees to a prevailing party in a civil suit

against the government if the government’s position was not “substantially justified.” 28
U.S.C. § 2412(d)(1)(A). It is undisputed that Plaintiff has prevailing party status. Schaefer,
509 U.S. at 300.

Thus, the only issue is whether the government’s position was

substantially justified; that is, whether it was “justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). “A position taken
by the Commissioner is substantially justified if it has a reasonable basis in fact and law,
and if there is a reasonable connection between the facts and the legal theory.” Stewart
v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). The EAJA is “not an automatic fee-shifting
statute,” so merely prevailing in a lawsuit against the government does not entitle a party
to fees. Brady v. Astrue, No. 08 C 4216, 2011 WL 767881, at *1 (N.D. Ill. Feb. 28, 2011)
(citing Potdar v. Holder, 585 F.3d 317, 319 (7th Cir. 2009)). That said, to avoid an award
of fees, the Commissioner must prove that “both his pre-litigation conduct, including the

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There is some confusion regarding the correct fee amount, but based on
Plaintiff’s Itemization of Services, it appears that he seeks 41.75 hours of work at $171.25
per hour, which is $7,149.69. (Doc. 27 ¶ 7; Doc. 27-1; Doc. 32, at 1).
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ALJ’s decision itself, and his litigation position were substantially justified.” Id. (citing
Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)).
B.

Analysis
The Commissioner argues that his position in defending the ALJ’s decision was

substantially justified because Dr. Boscardin’s treatment notes reflect “variable findings”
and “subjective complaints of pain,” which reasonably support the ALJ’s conclusion that
Plaintiff is not disabled. (Doc. 30, at 7). The Commissioner then supplies a detailed
recitation of the notes the ALJ omitted, and states his belief that they “d[o] not depict a
disabled individual.” (Id. at 4-7). This argument fails to acknowledge the fact that the ALJ
ignored the well-established treating physician rule by providing no indication as to the
weight he gave most of Dr. Boscardin’s opinions. Santoro, 2011 WL 528257, at *8.
Indeed, the ALJ selectively discussed Dr. Boscardin’s February 2006 assessment that
Plaintiff showed marked improvement and was neurologically intact with only occasional
back pain, and simultaneously disregarded other records showing that Plaintiff continued
to suffer from significant symptoms. For example, the ALJ said nothing about (1) a
“markedly positive tension sign” in December 2005 that prompted Dr. Boscardin to
prescribe five separate pain medications (R. 169); (2) complaints of “a lot of low back
problems” in May 2006 coupled with a new prescription for Vicodin Extra Strength (R. 167);
and (3) a reported “need to deal with this chronic nerve irritation” in June 2006. (R. 410).
The ALJ did discuss Dr. Boscardin’s April 10, 2008 opinion that Plaintiff was unable
to work due to continuing symptoms “compatible with chronic radiculopathy.” (R. 562). He
also reasonably determined that this opinion was not entitled to controlling weight based
on contrary findings from two state agency physicians, including Dr. Mahesh Shah. Yet the
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ALJ failed to take the next step and indicate how much weight he gave the April 2008
opinion as required by 20 C.F.R. § 404.1527(d). The Commissioner contends that this
omission does not justify an award of fees because the ALJ nonetheless gave “good
reasons” for rejecting Dr. Boscardin’s April 2008 opinion. (Doc. 30, at 7). The Court
disagrees.
In discrediting the April 2008 opinion, the ALJ first stated that Dr. Shah performed
the most “thorough physical examination” of Plaintiff in August 2006. (R. 17). However,
Dr. Shah is an internist who saw Plaintiff for less than 45 minutes on one occasion,
whereas Dr. Boscardin is a board-certified orthopaedic surgeon who treated Plaintiff since
1993, performed all of his back surgeries, and provided the most recent evaluation of his
condition. (R. 362). The ALJ also found that Plaintiff’s May 2006 MRI supported Dr.
Shah’s evaluation, but he failed to mention that the MRI showed the presence of scar
tissue, which the radiologist who performed the MRI concluded was “likely contributing to
a right S1 radiculopathy.” (R. 188). Neither of the ALJ’s stated rationales qualifies as a
good reason to reject Dr. Boscardin’s August 2008 opinion outright without any discussion
of the factors set forth in 20 C.F.R. § 404.1527(d).
Viewed as a whole, the Commissioner’s position did not have a reasonable basis
in law and fact given that the ALJ failed to address, much less weigh, significant evidence
from a treating physician, including evidence that did not support his ultimate conclusion.
In the absence of substantial justification for the Commissioner’s position, Plaintiff is entitled
to an award of fees. See Strocchia v. Astrue, No. 08 C 2017, 2010 WL 5367634, at *2
(N.D. Ill. Dec. 14, 2010) (granting award of EAJA fees and noting that “[a]n ALJ’s obligation

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to state why a treating physician’s opinion is not given controlling weight is well-established.”)
The Commissioner does not dispute the amount of fees requested, and
acknowledges that Plaintiff has assigned those fees to his attorney. (Doc. 27-4). The
Commissioner asks, however, that he be allowed to “evaluate the propriety of directing
payment to the attorney pursuant to [that] assignment,” noting that EAJA fees are “subject
to offset” in the event Plaintiff has “relevant federal debts.” (Doc. 30, at 9) (citing Astrue v.
Ratliff, 130 S.Ct. 2521, 2528 (2010)).

Plaintiff’s counsel has no knowledge of any

outstanding federal debts owed by her client, but has no objection to the government
sending her payment after confirming that fact. (Doc. 32, at 5). With this understanding,
Plaintiff is awarded $7,149.69.
CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Attorney’s Fees [27] is granted
in the amount of $7,149.69.

ENTER:

Dated: May 4, 2011
__________________________________
SHEILA FINNEGAN
United States Magistrate Judge

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