Plump v. Commissioner of Social Security

Filing 33

OPINION AND ORDER granting 29 Motion for Attorney Fees: Plump is awarded $6,112.29 in attorneys fees. Signed by Magistrate Judge Andrew P Rodovich on 2/10/14. (mc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
GREGORY R. PLUMP,

)
Plaintiff,
)
)
v.
)
)
)
CAROLYN W. COLVIN1, ACTING
COMMISSIONER OF SOCIAL SECURITY
)
ADMINISTRATION
)
)
Defendant.
)
__________________________________________)

Civil Action No. 2:12-CV-257

OPINION AND ORDER
This matter is before the court on the Plaintiff’s Application for Attorneys’ Fees Under the
Equal Access to Justice Act [DE 29] filed on August 30, 2013. For the following reasons, the
motion is GRANTED.

Background
The plaintiff, Gregory R. Plump, applied for Social Security Income Benefits and
Supplemental Security Income on August 1, 2008, alleging a disability onset date of July 1, 2005.
The applications initially were denied on November 5, 2008, and upon reconsideration on April 21,
2009. Plump filed a request for a hearing and appeared before Administrative Law Judge Karon
Sayon on January 4, 2011. The ALJ issued her decision denying benefits on January 13, 2011. The
Appeals Council denied review, making the ALJ’s decision the final decision of the Commissioner.

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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. Pursuant to Federal Rule of Civil Procedure 25(d), Carolyn W. Colvin is automatically
substituted for Michael J. Astrue as the named Defendant.
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Plump filed his complaint with this court on July 3, 2012, and on June 3, 2013, this court remanded
the case for further proceedings.
In the Opinion and Order, the court explained that Plump’s treating opthamologist diagnosed
him with glaucoma in his left eye and noted blurry vision. Plump reported glaucoma and blurry
vision in his left eye to the state agency consultative physician, Dr. Osei, but Dr. Osei did not
conclude that Plump had glaucoma. The ALJ adopted Dr. Osei’s opinion, without providing any
further explanation of the reason she did not consider Plump’s glaucoma or blurry vision. The court
explained that the ALJ might have considered these complaints implicitly by adopting Dr. Osei’s
opinion, but that the regulations required the ALJ to address medical evidence that conflicted with
her decision and to provide an explanation of her basis for rejecting a treating physician’s opinion
over that of a state consultative physician. Although the Commissioner argued that the ALJ’s failure
to provide an explanation was harmless error because Plump’s treating physician never noted that
Plump had greater restrictions than the ALJ determined, the court explained that the regulations
imposed a duty on the ALJ to explain her reasoning regardless, and absent such an explanation the
court could not be certain that the ALJ considered the evidence or that she would have reached the
same RFC if she had.
The court next explained that the ALJ determined that Plump’s depression and substance
abuse problems caused minimal limitations in Plump’s ability to perform mental work activities, but
she did not provide any explanation of the resulting limitations or explain why this non-severe
impairment did not require any limitations on Plump’s mental functioning. The court remanded the
case in part for the ALJ to provide further reasoning of what effect, if any, Plump’s mild limitations
in mental functioning had on his RFC. Similarly, the ALJ did not include a mild limitation in mental

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functioning in the hypothetical questions that she posed to the vocational expert. Because the court
could not be certain that the Vocational Expert would have identified the same jobs if he considered
this limitation, the court directed the ALJ to address this issue on remand.
The ALJ noted that the record did not contain enough doctor’s notes pertaining to Plump’s
diagnoses of cervical radiculitis, cervical sprain, cervical degenerative joint disease, and cervical
radicuopathy. The regulations state that the ALJ may not draw inferences from a failure to pursue
regular medical treatment without considering the claimant’s explanation. SSR 96-7p. However,
the ALJ did not elicit testimony from Plump to explain the absence of further treatment and did not
consider Plump’s financial condition.
The court agreed with the ALJ’s credibility assessment, consideration of Plump’s activities
of daily living and their affect on Plump’s RFC, and the weight the ALJ assigned to the testimony
of Plump’s witness. Plump’s attorney now seeks attorney’s fees for his successful appeal.

Discussion
The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees incurred in
litigation against the Commissioner of Social Security “unless the court finds that the position of the
United States was substantially justified or that special circumstances make an award unjust.” 28
U.S.C. § 2412(d)(1)(A); see also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 154, 110 S.Ct. 2316,
110 L.Ed.2d 134 (1990); Golembiewski v. Barnhart, 382 F.3d 721, 723-34 (7th Cir. 2004). A fee
application must be filed within thirty days of a court’s final judgment and must satisfy the
following requirements: (1) a showing that the applicant is a “prevailing party;” (2) a showing that
the application is “eligible to receive an award;” (3) a showing of “the amount sought, including an

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itemized statement from any attorney or expert witness representing or appearing in[sic] behalf of
the party stating the actual time expended and the rate at which fees and other expenses were
computed;” and (4) an “alleg[ation] that the position of the United States was not substantially
justified.” 28 U.S.C. § 2412(d)(1)(B); see also Scarborough v. Principi, 541 U.S. 401, 405, 124
S.Ct. 1856, 158 L.Ed.2d 674 (2004); United States v. Hallmark Constr. Co., 200 F.3d 1076, 107879 (7th Cir. 2000) (setting forth the elements of § 2412(d)(1)(A) & (B))).
Considering whether the Commissioner was substantially justified, the court is to analyze
the “position of the United States,” which refers to the conduct of the Commissioner throughout the
civil action, including pre-litigation conduct. 28 U.S.C. § 2412(d)(2)(D); Golembiewski, 382 F.3d
at 724; Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The trial court must consider
whether the Commissioner’s pre- and post-litigation “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 advanced.” Golembiewski,
382 F.3d at 724 (citing Hallmark Constr., 200 F.3d at 1080). A court should evaluate the factual
and legal support for the Commissioner’s position throughout the entire proceeding. See Hallmark
Constr., 200 F.3d at 1080.

A court need only make one determination regarding the

Commissioner’s conduct during the entire civil action. Jean, 496 U.S. at 159, 110 S.Ct. at 2319;
Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996). “[F]ees may be awarded in cases where the
government’s prelitigation conduct was not substantially justified even though its litigation position
may have been substantially justified and vice versa.” Marcus, 17 F.3d at 1036. The court must
undertake a global analysis of the government’s position because whether that position was
substantially justified will rarely be decided by a single issue. See Hallmark Constr., 200 F.3d at

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1080.
Although the EAJA does not define “substantial justification,” the Supreme Court has
defined the term to mean “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also Golembiewski,
382 F.3d at 724. Expanding on this definition, the United States Court of Appeals for the Seventh
Circuit explained, “‘Substantially justified’ does not mean ‘justified to a high degree,’ but rather has
been said to be satisfied if there is a ‘genuine dispute,’ or if reasonable people could differ as to the
appropriateness of the contested action.” Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992) (citing
Pierce, 487 U.S. at 565, 108 S.Ct. at 2550); Church v. Astrue, 496 F.Supp.2d 964, 966 (N.D. Ind.
2007) (“[I]f an agency had ‘a rational ground for thinking it had a rational ground for its action,” the
Commissioner's position is substantially justified.’” (citing Kolman v. Shalala, 39 F.3d 173, 177 (7th
Cir. 1994)). When conducting this analysis, the court should consider whether the ALJ’s decision
was plausibly supported by evidence of record and whether the Commissioner’s position is
supported by applicable law. Church, 496 F.Supp.2d at 966 (citing Cunningham v. Barnhart, 440
F.3d 862, 863 (7th Cir. 2006); Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994)). The substantial
justification standard is different than the substantial evidence standard, which is used to evaluate
the merits of a claimant’s request for remand. See Pierce, 487 U.S. at 568-69, 108 S.Ct. at 2552.
Thus, a loss on the merits does not automatically constitute a lack of substantial justification. See
Pierce, 487 U.S. at 569, 108 S.Ct. at 2252. The Commissioner bears the burden of proof in showing
that the government’s litigation position was substantially justified. See Pierce, 487 U.S. at 565, 108
S.Ct. at 2561; Golembiewski, 382 F.3d at 724.
The court remanded the ALJ’s decision for several reasons. First, the court explained that

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the ALJ failed to provide any explanation for rejecting the conflicting opinions of Plump’s treating
opthamologist and the state consultative physician’s opinion. Although the Commissioner argued
that this failure was harmless error because nothing in the record supported a more restrictive
limitation than that which the ALJ imposed, the court rejected this argument, explaining that the ALJ
had a duty to explain the reasons she rejected medical evidence that contradicted her conclusion and
the record was devoid of any consideration of the documented impairments. The Commissioner now
argues that reasonable people could disagree on whether the ALJ’s failure to explain the reasons she
rejected the conflicting opinions of Plump’s treating opthamologist was substantially supported,
again arguing that there was a colorable argument that the ALJ’s failure to address Plump’s treating
opthamologist’s opinion was harmless error because none of the physicians of record demanded
greater restrictions than those the ALJ found. However, this does not accurately reflect the ALJ’s
duty. The ALJ was required to address material inconsistencies and to explain contradictions
between the treating physician’s opinion and the other evidence of record. See SSR 96-8p; Clifford
v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).
Here, Plump’s treating opthamologist found that Plump had glaucoma and that it caused
blurry vision. The state agency consultative physician did not find that Plump had glaucoma or,
consequently, blurry vision in his left eye. Therefore, the opinions were in direct contrast to each
other. Although Plump’s treating opthamologist did not state that Plump had further limitations than
those imposed, it is difficult to fathom a situation where blurry vision in his one “good” eye would
not affect his vision in some capacity. Because the ALJ’s had a clearly established duty to, at
minimum, address why she rejected the contrary opinion of Plump’s treating physician, the court
finds that the Commissioner’s position was not substantially justified. See Schmidt v. Astrue, 496

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F.3d 833, 842 (7th Cir. 2007)(“An ALJ thus may discount a treating physician’s medical opinion if
the opinion is inconsistent with the opinion of a consulting physician or when the treating
physician’s opinion is internally inconsistent, as long as he minimally articulates his reasons for
crediting or rejecting evidence of disability.”); Clifford, 227 F.3d at 870 (explaining that the ALJ
must “minimally articulate his reasons for crediting or rejecting evidence of disability.”) (quoting
Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992)); See also 20 C.F.R. § 404.1527(d)(2)
(“We will always give good reasons in our notice of determination or decision for the weight we
give your treating source's opinion.”). It is immaterial that Plump’s treating opthamologist did not
state that Plump was further limited. Rather, the record must reflect that the ALJ considered all the
evidence– specifically evidence that could result in greater restrictions and that which was diagnosed
by a treating physician.
Additionally, the court remanded because the ALJ identified depression as a non-severe
impairment but did not identify any resulting limitations or explain why Plump’s depression did not
affect his RFC. The ALJ also failed to incorporate Plump’s mild limitations in mental functioning
into the hypotheticals she posed to the VE and did not inquire into the reasons Plump failed to obtain
further treatment. The Commissioner argues that non-severe impairments by definition do not affect
the RFC. However, the regulations explicitly require that the ALJ consider the non-severe
impairments in combination with the severe impairments. 20 C.F.R. § 404.1523. See also, Parker
v. Astrue, 597 F.3d 920, 923 (7th Cir. 2010); Winfield v. Commissioner of Social Security, 2013 WL
692408, *3 (N.D. Ind. 2013). Although the non-severe impairments may not have an effect on the
claimant’s RFC ultimately, the ALJ was required to explain why. See SSR 96-8p (“The adjudicator
must also explain how any material inconsistencies or ambiguities in the evidence in the case record

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were considered and resolved.”). Similarly, even if the ALJ determined that depression was a nonsevere impairment, it should have been included in the hypotheticals posed to the VE, because when
this non-severe impairment was considered in combination with the severe impairments, the VE’s
response may have differed. These were clearly established duties that the ALJ failed to comply
with.
The ALJ also relied in part on the absence of treatment records in reaching her decision.
However, she reached this conclusion without asking Plump why he failed to obtain more medical
care. Again, this was a clearly established duty that the ALJ failed to comply with. See Roddy v.
Astrue, 705 F.3d 631, 638 (7th Cir. 2013) (explaining that the ALJ must elicit reason for failing to
pursue medical treatment).
The ALJ failed to fulfill multiple duties that were outlined clearly by the regulations and
well-established. For this reason, the court does not find that the Commissioner’s decision was
justified.
The Commissioner also disputes whether Plump’s attorney’s fee request is reasonable. The
EAJA provides that “attorney fees shall not be awarded in excess of $125 per hour unless the court
determines that an increase in the cost of living or a special factor . . . justifies a higher fee.” 28
U.S.C. § 2412(d)(2)(A)(ii). The Commissioner argues that Plump has not met his burden of
showing that the enhanced rate he requested is justified. In Matthews-Sheets v. Astrue, 653 F.3d
560, 563 (7th Cir. 2011), the Seventh Circuit explained that an attorney is not entitled to an inflation
adjustment, but he must show that inflation has increased the cost of providing adequate legal
service to a person seeking relief against the government. Mathews-Sheets, 653 F.3d at 563. An
attorney must “show that without a cost of living increase . . . a lawyer capable of competently

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handling the challenge that his client mounted to the denial of social security benefits could not be
found in the relevant geographical area to handle such a case.” Matthews-Sheets v. Astrue, 653
F.3d at 565.
Plump’s attorney submitted the local consumer price index as support for his argument that
inflation has increased the cost of legal services. He argues that the CPI reflects that the cost of rent,
salaries, research fees, and other overhead expenses have increased. He also submitted his affidavit
and the affidavit of another local Social Security attorney, both of whom stated that they do not take
cases for an EAJA of less than $170. In light of these submissions, the court finds that Plump’s
attorney has met his burden to show that the cost of legal services has increased. However, the
Commissioner points out that Plump’s counsel used the “U.S. City Average” of the CPI to derive
upon the rate he proposed. The court agrees that the local consumer price index is the most accurate
source of the cost of living in the market where the litigation occurred, and that the Midwest Urban
Consumer Price Index should be used to calculate the rate of attorney’s fees, reducing the hourly
rate to $181.59.
The parties also dispute the rate at which the law clerk should be permitted to bill. The
Commissioner argues that most of the work performed by the law clerk was clerical and that Plump
has not shown that an increased rate is merited for the work the law clerk performed. Plump
conceded that some of the tasks the law clerk performed were administrative and stated that he
amended Exhibit B to reflect as much. However, he did not file the Amended Exhibit B. Upon
review of the time log submitted, the court agrees that many of the tasks the law clerk performed
were administrative, including such tasks as emailing, faxing, creating a file, and scanning. For this
reason, the court finds that Plump’s attorney did not meet his burden to show that a higher rate was

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warranted and will reduce the law clerk’s rate to $100 per hour. This amounts to a total fee award
of $6,112.29.
Based on the foregoing reasons, Plump is awarded $6,112.29 in attorney’s fees.
ENTERED This 10th day of February, 2014
/s/ Andrew P. Rodovich
United States Magistrate Judge

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