Wulf v. Astrue
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 9/15/2011: Mailed notice. (is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BARBARA J WULF,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social Security,
Defendant.
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No. 09 C 6505
Magistrate Judge Finnegan
MEMORANDUM OPINION AND ORDER
Plaintiff Barbara J. Wulf filed an action seeking review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and
XVI of the Social Security Act. On May 2, 2011, the Court remanded the case to the
Administrative Law Judge (“ALJ”) for further evaluation. Plaintiff now seeks to recover her
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 ALJ’s decision was not
“substantially justified.” For the reasons set forth here, the application for fees is granted.
BACKGROUND
Plaintiff filed for DIB and SSI on March 27, 2006, alleging that she became disabled
on June 16, 2005 from injuries she sustained in a motor vehicle accident that have left her
with muscle, ligament, and nerve damage to her neck, and chronic pain. The Social
Security Administration denied her application initially and on reconsideration. Following
an administrative hearing, the ALJ found that Plaintiff has the residual functional capacity
to perform a restricted range of light work and is therefore not disabled. The Appeals
Council denied Plaintiff’s request for review, and she sought relief in this Court pursuant
to 42 U.S.C. § 405(g).
In support of her motion to reverse the Commissioner’s decision, Plaintiff argued that
the ALJ (1) did not give proper weight to the assessments of her treating physicians, (2)
failed to consider or misstated material evidence, and (3) erred in finding that her
statements concerning the intensity, persistence, and limiting effects of her symptoms were
not fully credible. The Court agreed with the first argument, noting that the ALJ omitted any
reference to treating physician Dr. Samir Sharma, his medical records, or the specific work
restrictions he imposed on Plaintiff. Wulf v. Astrue, No. 09 C 6505, 2011 WL 1642522, at
*14 (N.D. Ill. May 2, 2011). In addition, the ALJ gave only “cursory reasons” for declining
to give controlling weight to the opinion of treating physician Dr. Eileen Heffernan, and then
failed to determine what weight it held as required by 20 C.F.R. § 404.1527(d)(2). Id. at
*15.
The Court also agreed with Plaintiff that the ALJ’s credibility determination was
flawed because he did not discuss findings and records from treating physician Dr. George
DePhillips that supported Plaintiff’s claims of disabling limitations. Id. at *17. The ALJ’s
observation that Plaintiff was able to sit through the entire hearing, despite claiming that
she could only sit for five minutes out of an eight-hour day, was not alone sufficient to
overcome the error. Id. at *19 (citing Powers v. Apfel, 207 F.3d 431, 436 (7th Cir. 2000))
(expressing doubt as to the reliability of the “sit-and-squirm” test). For all these reasons,
the Court remanded the case for further proceedings.
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On July 27, 2011, Plaintiff filed a timely application for fees in the amount of
$8,075.97. (Doc. 41, at 1). See also Shalala v. Schaefer, 509 U.S. 292, 302 (1993). The
Commissioner does not object to the reasonableness of the specific amount requested, but
insists that Plaintiff is not entitled to any fees in this case. In her reply memorandum,
Plaintiff amended her fee request to include time spent preparing that document, and she
now seeks a total of $8,591.56. (Doc. 49, at 2).
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 is a “prevailing party.” Schaefer, 509
U.S. at 300.
Therefore, the only issue is whether the government’s position was
substantially justified, meaning “justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). A position must have a
reasonable basis in both fact and law, and there must be 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 against the government
in a suit 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)).
To avoid an award of fees, the ALJ must prove that both his pre-litigation conduct, including
the ALJ’s decision, and his position during the litigation were substantially justified. Id.
(citing Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)).
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B.
Analysis
The Commissioner argues that his position in defending the ALJ’s decision was
substantially justified because on the whole, he had “a rational ground for thinking [he] had
a rational ground in defending this case.” (Doc. 48, at 6-7). The Commissioner first
stresses the Court’s finding that the ALJ “did not err or err harmfully” by failing to discuss
certain conclusory opinions from Dr. DePhillips, such as that Plaintiff was “disabled” and
“unemployable.” Wulf, 2011 WL 1642522, at *15. Yet the Court also observed that the
ALJ’s error in failing to mention Dr. DePhillips’s treatment notes from April 2006 through
January 2008 required a remand. Those notes described a second surgical procedure on
Plaintiff’s back and various pre- and post-operative findings that were relevant to Plaintiff’s
complaints of disabling limitations.
In addition, the ALJ did not address Plaintiff’s
continuous use of “a host of narcotic and nonnarcotic pain medications” throughout the
nearly three-year period covered in the records. Id. at *17-18 (noting that the ALJ cannot
selectively discuss evidence that supports his ultimate conclusion). The Commissioner
characterizes these omissions as “error[s] of form,” claiming that the ALJ merely “fail[ed]
to more fully articulate his credibility finding.” (Doc. 48, at 6). To the contrary, the ALJ
improperly ignored significant medical evidence that supported Plaintiff’s allegations.
Accord Bassett v. Astrue, 641 F.3d 857, 859-60 (7th Cir. 2011) (“[I]t typically takes . . .
something like the ALJ’s ignoring or mischaracterizing a significant body of evidence” to
make the Commissioner’s position unjustified).
The Commissioner also attempts to minimize the ALJ’s error with respect to Dr.
Heffernan’s medical opinion. He acknowledges that the ALJ failed to provide more than
“cursory reasons” for discounting the opinion, but he notes that such a “shortcoming alone
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usually will not be enough to poison the opinion – or the commissioner’s defense of the
opinion.” Bassett, 641 F.3d at 859. Here, however, the ALJ not only provided an
incomplete explanation for declining to give Dr. Heffernan’s opinion controlling weight, but
he also ignored his well-established obligation to consider the factors in 20 C.F.R. §
404.1527(d)(2) and determine what weight to give it. Wulf, 2011 WL 1642522, at *15. This
is more than a mere “failure to ‘connect the dots’ in the analysis.” Cf. Bassett, 641 F.3d at
859.
In addition to these errors, the ALJ omitted any reference whatsoever to Dr. Sharma
or his treatment notes. The Commissioner suggests that Dr. Sharma’s findings are not
significant because some of the stated restrictions appeared in the “subjective” portion of
the report. (Doc. 48, at 5). The ALJ, however, did not offer that as a basis for completely
ignoring Dr. Sharma’s records, and there is no question that an agency’s lawyers cannot
“defend the agency’s decision on grounds that the agency itself had not embraced.” Parker
v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (citing SEC v. Chenery Corp., 318 U.S. 80
(1943)). Moreover, the ALJ once again failed to consider what weight to give this treating
physician’s opinion. Wulf, 2011 WL 1642522, at *14.
Viewed as a whole, the Commissioner’s position lacked a reasonable basis in fact
and law due to the ALJ’s failure to address and weigh significant evidence that would have
impacted his decision. In the absence of substantial justification for the Commissioner’s
position, Plaintiff is entitled to an award of fees.
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CONCLUSION
For the reasons stated above, Plaintiff’s Motion for Attorney’s Fees is granted in the
amount of $8,591.56.
ENTER:
Dated:September 15, 2011
_________________________________
SHEILA FINNEGAN
United States Magistrate Judge
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