Tadros v. Astrue
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 1/9/2012: Mailed notice(is, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
HANI S. TADROS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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No. 10 C 7074
Magistrate Judge Finnegan
MEMORANDUM OPINION AND ORDER
Plaintiff Hani Tadros filed an action seeking to overturn the final decision of the
Commissioner of Social Security (“Commissioner”) denying his application for Disability
Insurance Benefits under Title II of the Social Security Act. On July 22, 2011, the Court
remanded the case to the Administrative Law Judge 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 ALJ’s
decision was not “substantially justified.” For the reasons set forth below, the Court
concludes that the Commissioner’s position was not substantially justified because he
failed to address evidence from Plaintiff’s podiatrist that may have been relevant to the
determination of Plaintiff’s residual functional capacity. Accordingly, the application for
fees is granted.
BACKGROUND
Plaintiff applied for disability insurance benefits on January 3, 2008, alleging that he
became disabled beginning on June 8, 1998 due to headaches, carpal tunnel syndrome,
and problems with his back, neck, and upper extremities.
The Social Security
Administration denied the application initially and on reconsideration.
Following an
administrative hearing, an ALJ found that Plaintiff is not disabled because he is capable
of performing a significant number of jobs available in the national economy. The Appeals
Council denied Plaintiff’s request for review, and he sought relief in this Court pursuant to
42 U.S.C. § 405(g). Plaintiff made three main arguments for reversal, asserting that the
ALJ erred by (1) discounting or disregarding medical evidence and vocational expert
testimony in making a finding on his residual functional capacity (RFC); (2) determining that
he could perform his past work where the vocational expert had testified otherwise and
where such work was found not to be substantial gainful activity; and (3) incorrectly
assessing the weight to be given to the opinion of his chiropractor.
This Court was not persuaded by the vast majority of Plaintiff’s arguments. Indeed,
the Court rejected four of the five grounds Plaintiff asserted in support of his first argument
challenging the RFC determination, and rejected the second and third arguments in their
entirety. Ultimately, the Court found that Plaintiff presented one viable ground for reversal
— that the ALJ ignored a letter from his podiatrist, Dr. Monif Matouk. As the Court noted,
Dr. Matouk’s letter opined on a wide range of Plaintiff’s alleged medical conditions that are
beyond the scope of his qualifications as an acceptable medical source, including a brain
aneurysm, arthritis of the cervical spine, nerve entrapment in the upper extremities,
migraine headaches, anxiety and depression, post-traumatic stress disorder, and sleep
apnea. As a podiatrist, Dr. Matouk is an acceptable medical source solely for the purpose
of establishing that Plaintiff suffers from impairments related to his feet and ankles. See
20 C.F.R. § 404.1513(a)(4). Therefore, the Court concluded that the ALJ did not err by
disregarding Dr. Matouk’s opinions as to those conditions beyond his expertise.
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However, the ALJ should have considered and addressed Dr. Matouk’s statements
concerning Plaintiff’s foot and ankle conditions, namely his assertions that Plaintiff has
diminished range of motion in his foot and ankle joints and nerve damage that makes him
unstable and prone to ankle sprains, and that his foot condition generally causes severe
pain and edema after less than half an hour of standing or walking. These statements may
have been relevant to the RFC determination since they seemingly contradict the RFC’s
specification that Plaintiff can sit, stand or walk for about two hours in an eight-hour
workday. As the Court noted, the ALJ did not mention or discuss Dr. Matouk’s letter. It is
conceivable that the ALJ found the letter unpersuasive given that it is dated nearly six
years after Plaintiff’s date last insured (DLI) and does not specify the time frame of any
assessment, diagnosis, or course of treatment, nor does the factual record contain any
treatment notes, medical records, or other documentation to substantiate the statements
in the letter. As the Court noted, to the extent Dr. Matouk’s letter was insufficient to allow
the ALJ to determine if Plaintiff had any foot or ankle limitations or whether Plaintiff was
disabled prior to the DLI, the ALJ was obligated to contact Dr. Matouk by mail or telephone
for clarification. See 20 C.F.R. § 404.1512(e)(1). This lack of information, together with
the ALJ’s failure to mention or discuss the letter, rendered this Court unable to determine
whether the ALJ adequately considered the relevant statements from Dr. Matouk or
whether Plaintiff’s alleged foot and ankle impairments produced symptoms that are
unaddressed in the RFC. Accordingly, the Court concluded that the ALJ failed to build an
accurate and logical bridge from the evidence to his conclusion that Plaintiff is capable of
employment, and remanded the matter for consideration of the evidence related to
Plaintiff’s foot and ankle conditions only.
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On October 19, 2011, Plaintiff filed a timely application asserting that he is the
prevailing party in this action and requesting attorneys’ fees in the amount of $5,261.25
and costs in the amount of $366.62. (Docs. 28, 29). See 28 U.S.C. § 2412(d)(1)(B); see
also Shalala v. Schaefer, 509 U.S. 292, 302 (1993). The Commissioner does not object
to the reasonableness of the amount requested, but argues that Plaintiff is not entitled to
any fees at all because the Commissioner’s position that Plaintiff was not disabled was
substantially justified. (Doc. 31). In his reply memorandum, Plaintiff amended his fee
request to include 1.5 hours spent preparing the reply and now seeks a total of $5,520 in
attorneys’ fees and $366.62 in costs, for a total of $5,886.62. (Doc. 32).
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). To be eligible to receive a fee award, a party “must show that: (1)
[he] was a prevailing party; (2) the Government’s position was not substantially justified;
(3) there existed no special circumstances that would make an award unjust; and (4) [he]
filed a timely and complete application for fees.” Potdar v. Holder, 585 F.3d 317, 319 (7th
Cir. 2009) (quoting Kholyavskiy v. Holder, 561 F.3d 689, 690 (7th Cir. 2009)). Here, it is
undisputed that Plaintiff filed a timely and complete petition and is a “prevailing party,” see
Schaefer, 509 U.S. at 300, and the Commissioner does not assert that “special
circumstances” exist. Thus, the only issue is whether the government’s position was
substantially justified, meaning “justified to a degree that could satisfy a reasonable
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person.” Potdar, 585 F.3d at 319 (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)). To be substantially justified, 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); Cunningham v. Barnhart, 440
F.3d 862, 864 (7th Cir. 2006).
The EAJA “‘is not an automatic fee-shifting statute,’” so merely prevailing against
the government does not entitle a party to fees. Potdar, 585 F.3d at 319 (citation omitted);
see also Frost v. Astrue, 369 F. App’x 721, 722 (7th Cir. 2010) (citing United States v.
Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 387 (7th Cir. 2010) (holding in the
consolidated case of Park v. Astrue that a remand does not necessarily entitle a claimant
to attorneys’ fees); Berman v. Schweiker, 713, F.2d 1290, 1295 n.18 (7th Cir. 1983)
(holding that “merely because the government loses a case, a presumption does not arise
that the government’s position was not substantially justified.”).
Nor does a fee
determination rest solely on the number of issues on which the plaintiff prevailed; rather
the inquiry involves an assessment of the complete litigation, including pre-litigation
conduct and the ALJ’s decision, and the Commissioner bears the burden of proving that
his position was substantially justified overall. Stewart, 561 F.3d at 683-84; Conrad v.
Barnhart, 434 F.3d 987, 990 (7th Cir. 2006).
B.
Analysis
Because the Commissioner prevailed on all challenges to the ALJ’s decision except
the one concerning Dr. Matouk’s letter, the only issue for this fee petition is whether the
government was substantially justified in its position that the ALJ did not err by disregarding
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the letter. The Commissioner argues that the ALJ was substantially justified in not
discussing Dr. Matouk’s letter because the letter post-dated Plaintiff’s DLI by nearly six
years, it opined on conditions unrelated to podiatry and for which Dr. Matouk did not
provide treatment, it stated no specific functional limitations, and it was not supported by
other medical evidence in the record. (Doc. 31 at 4). All of these points are well-taken.
Nonetheless, the ALJ’s failure to discuss this piece of evidence, and the Commissioner’s
position in defending this omission, is not substantially justified for the reasons discussed
below.
Even though much of the letter was outside the scope of Dr. Matouk’s expertise as
a podiatrist, the ALJ should have discussed those statements concerning conditions for
which Dr. Matouk is qualified as an acceptable medical source. The letter states that
Plaintiff suffers from foot and ankle conditions affecting his range of motion and stability,
and that those conditions cause pain and edema when he stands and walks, generally
within a half hour. The RFC determination requires an ALJ to consider all functional
limitations and restrictions that stem from medically determinable impairments, including
those that are not severe. See SSR 96–8p, 1996 WL 374184, *5. While an ALJ need not
discuss every piece of evidence, he must logically connect the evidence to his conclusions.
See Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010); 516 F.3d 539, 544 (7th Cir.
2008). Here, Dr. Matouk’s assessment of Plaintiff’s foot and ankle impairments is at odds
with the RFC finding that Plaintiff can sit, stand, and walk for two hours in an eight-hour
workday.
The Commissioner relies on Bassett v. Astrue, 641 F.3d 859 (7th Cir. 2011), for the
proposition that there is flexibility in the requirement that the ALJ articulate an assessment
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of the evidence, and on this basis contends that the ALJ was substantially justified in the
position he took. (Doc. 31 at 4-5). This general proposition is accurate, as the ALJ is not
required to itemize every piece of evidence considered and explain its connection to the
decision so long as the ALJ’s overall reasoning is supported by the record and the law.
See Bassett, 641 F.3d at 859-860; Cunningham v. Barnhart, 440 F.3d 862, 865 (7th Cir.
2006). But this general rule does not support the government’s opposition to fees in this
case. The Bassett case, in which the appellate court affirmed the denial of fees, is
factually distinguishable from this case. In Bassett, the ALJ committed a non-fatal
“articulation error” by failing to explain how she determined the date upon which the
claimant’s back condition preventing him from working. Id. at 860. The Seventh Circuit
expressly stated that the error did not taint the Commissioner’s position because “in
making this mistake the ALJ did not ignore, mischaracterize, selectively cite, or otherwise
bungle a significant body of relevant evidence.” Id.; see also Golembiewski v. Barnhart,
382 F.3d 721, 724-725 (7th Cir. 2004) (reversing denial of fee request because the
government mischaracterized medical evidence and ignored other significant evidence
concerning plaintiff’s limitations). By contrast, the ALJ in this case did just that by ignoring
potentially relevant evidence from Plaintiff’s podiatrist that may have affected the RFC
determination. Likewise, the other cases the Commissioner cites also involved non-fatal
articulation errors, not the wholesale ignoring of potentially relevant evidence. See
Cunningham, 440 F.3d at 864-865; Stein v. Sullivan, 966 F.2d 317, 319-320 (7th Cir.
1992).
The Court recognizes the many deficiencies in Dr. Matouk’s statements that make
the letter less than helpful, including the fact that it post-dates the DLI by nearly six years
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and does not specify when the symptoms and diagnosis arose. The weight of the
statements is further weakened by the absence of any medical records or notes
whatsoever from Dr. Matouk, or indeed from any health care provider, to substantiate the
symptoms, diagnosis, and treatment, if any, of Plaintiff’s foot and ankle ailments. But as
the Court previously noted, if Dr. Matouk’s letter was insufficient to allow the ALJ to
determine if Plaintiff has foot or ankle conditions that limit his ability to work, or whether
those conditions pre-date the DLI, then the ALJ was obligated to contact Dr. Matouk for
clarification. See 20 C.F.R. § 404.1512(e)(1) (“We will seek additional evidence or
clarification from your medical source when the report from your medical source contains
a conflict or ambiguity that must be resolved, the report does not contain all the necessary
information, or does not appear to be based on medically acceptable clinical and laboratory
diagnostic techniques.”). The ALJ did not do that here. The fact that the ALJ did not
contact Dr. Matouk for clarification, and then did not acknowledge, let alone discuss, the
pertinent statements, renders the Commissioner’s position on this issue not substantially
justified. Accordingly, Plaintiff is entitled to an award of $5,520 in fees.1
Finally, Plaintiff requests costs consisting of $350 for his filing fee to commence this
action and $16.62 for the cost of service of summonses by certified mail. The Equal
Access to Justice Act, 28 U.S.C. § 2412, provides for recovery of costs, as enumerated in
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The Commissioner argues that a fee award, if any, should be paid to Plaintiff, rather
than directly to his attorney as he requests, citing the Supreme Court’s opinion in Astrue v. Ratliff,
130 S.Ct. 2521, 177 L.Ed.2d 91 (2010). (Doc. 31, at 5-6). But Ratliff is not applicable in cases,
like this one, where the plaintiff assigned the fee award to his attorney in advance, as evidenced
here by the representation agreement attached to Plaintiff’s motion (Doc. 28-1). See MathewsSheets v. Astrue, 653 F.3d 560, 565-566 (7th Cir. 2011). Nor does the Commissioner assert that
the assignment should be ignored and the fee paid directly to Plaintiff on the ground that he owes
a debt to the government. See id. Accordingly, the fee award is payable to Plaintiff’s attorney
pursuant to the representation agreement.
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28 U.S.C. § 1920, by a prevailing plaintiff against the United States or any agency or
official acting in his or her official capacity. Id. at § 2412(a)(1). Section 1920 allows for
recovery of the requested costs. See 28 U.S.C. § 1920(1), (5). Accordingly, Plaintiff is
awarded $366.62 in costs.
CONCLUSION
For the reasons stated above, the Plaintiff’s Motion for Award Under the Equal
Access to Justice Act is granted in the amount of $5,886.62, consisting of $5,520 in fees
and $366.62 in costs.
ENTER:
Dated: January 9, 2012
__________________________
SHEILA FINNEGAN
United States Magistrate Judge
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