Mills v. Social Security Administration

Filing 32

ORDER granting 26 Motion for Attorney Fees by Magistrate Judge Carmen E. Garza. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ROY MILLS,
Plaintiff,
v.

No. CV 16-573 CG

NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Roy Mills’ Motion for Attorney Fees
Pursuant to the Equal Access to Justice Act, With Memorandum in Support (the
“Motion”), (Doc. 26), filed September 7, 2017; Defendant’s Response to Plaintiff’s
Motion for Attorney Fees Under Equal Access to Justice Act (the “Response”), (Doc.
27), filed September 15, 2017; and Plaintiff’s Reply in Support of Motion for Attorney
Fees Pursuant to the Equal Access to Justice Act (the “Reply”), (Doc. 30), filed October
6, 2017. Having reviewed the Motion, the Response, the Reply, and the relevant law,
the Court finds that Plaintiff’s Motion is well-taken and should be GRANTED.
I.

Background
On April 23, 2013, Mr. Mills filed applications for supplemental security income

and disability insurance benefits, alleging disability beginning August 2, 2011.
(Administrative Record “AR” 16). His applications were denied initially and upon
reconsideration, (AR 16), and following a hearing before Administrative Law Judge
(“ALJ”) Ann Farris, (AR 29). Mr. Mills thereafter filed for review by the Appeals Council,

(AR 12), which was denied, (AR 7-9), making the ALJ’s decision the final decision of the
Commissioner of the Social Security Administration (the “Commissioner”).
Mr. Mills then appealed to this Court, arguing the ALJ erred in considering and
weighing the opinions of Psychiatric Mental Health Practitioner (“PMHNP”) Jayanna
Warwick and non-examining State Agency psychologist Carol Mohney, Ph.D. (Doc. 17
at 14-19). Finding that the ALJ failed to properly consider and weigh Ms. Warwick’s and
Dr. Mohney’s opinions, the Court granted Mr. Mills’ Motion and remanded the
Commissioner’s decision. (Doc. 24).
Mr. Mills now moves the Court for attorney’s fees pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 26). He argues that an award of
attorney’s fees is appropriate because he was the prevailing party, his net worth is less
than $2,000,000.00, and the Commissioner’s position in defending the action was not
substantially justified. Id. at 1.
II.

Analysis
A. Standard of Review
Pursuant to EAJA, a court is required to award attorney’s fees if: “(1) plaintiff is a

‘prevailing party;’ (2) the position of the United States was not ‘substantially justified;’
and (3) there are no special circumstances that make an award of fees unjust.” Hackett
v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (citing 28 U.S.C. § 2412(d)(1)(A)).
Here, the Commissioner only disputes whether her position was substantially justified.
(Doc. 27).
“The test for substantial justification in this circuit is one of reasonableness in law
and fact.” Id. at 1172 (citing Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). In

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order to be substantially justified, the government’s position must be “justified in
substance or in the main - that is, justified to a degree that could satisfy a reasonable
person.” Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988) (citing Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). “The term position includes the government’s
position both in the underlying agency action and during any subsequent litigation.” Id.
“When an area of law is ‘unclear or in flux, it is more likely that the government’s
position will be substantially justified.’” Cherry v. Barnhart, 125 Fed. Appx. 913, 916
(10th Cir. 2005) (unpublished) (citing Martinez v. Sec’y of Health and Human Servs.,
815 F.2d 1381, 1382 (10th Cir. 1987)). Indeed, “the government’s position can be
justified even though it is not correct.” Hackett, 475 F.3d at 1172 (citing Pierce, 487 U.S.
at 566, n.2). “The government bears the burden of showing that its position was
substantially justified.” Gilbert, 45 F.3d at 1394 (internal citations omitted).
B. The Commissioner’s Position Was Not Substantially Justified
1. Ms. Warwick’s Opinions
Ms. Warwick performed a Medical Assessment of Ability to Do Work-Related
Activities (Mental) for Mr. Mills, in which she found that Mr. Mills has marked difficulty in:
remembering locations and work-like procedures; understanding and remembering
detailed instructions; and accepting instructions and responding appropriately to
criticism from supervisors. (AR 774-75). Ms. Warwick also found that Mr. Mills has
moderate difficulty in: understanding and remembering very short and simple
instructions; carrying out detailed instructions; maintaining attention and concentration
for extended periods of time (i.e. 2-hour segments); making simple work-related
decisions; completing a normal workday and workweek without interruptions from
psychological-based symptoms, and performing at a consistent pace without an
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unreasonable number and length of rest periods; getting along with coworkers or peers
without distracting them or exhibiting behavioral extremes; maintaining socially
appropriate behavior and adhering to basic standards of neatness and cleanliness;
responding appropriately to changes in the work place; traveling in unfamiliar places or
using public transportation; and setting realistic goals or making plans independently of
others. Id.
The ALJ stated that she gave Ms. Warwick’s opinions little weight because they
are not consistent with her treatment notes, she is not an acceptable medical source,
and she has not observed Mr. Mills in a work setting. (AR 25-26). In support of these
reasons, the ALJ relied on Ms. Warwick’s notes that Mr. Mills’ memory was intact and
that he was alert and oriented at each of his three visits with her, and that Ms.
Warwick’s “treatment notes do not provide any justification as to why [Mr. Mills] would
have difficulty handling criticism from supervisors.” Id.
The Court found that, even though Ms. Warwick was a non-acceptable medical
source, the ALJ was still required to adequately explain why she rejected Ms. Warwick’s
opinions as to Mr. Mills’ limitations. (Doc. 24 at 14). The Court found that the ALJ erred
by failing to specify which of Ms. Warwick’s opinions she gave little weight, and by
failing to explain how she considered and resolved material inconsistencies and
ambiguities in the evidence in the record. Id. at 14-16 (citing Clifton v. Chater, 79 F.3d
1007, 1009 (10th Cir. 1996) (holding that “the absence of findings supported by specific
weighing of the evidence” in the record leaves the Court unable to assess whether
relevant evidence adequately supports the ALJ’s conclusion)).

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In response to Mr. Mills’ Motion to Reverse or Remand, the Commissioner
argued that the ALJ properly assigned Ms. Warwick’s opinions little weight because Ms.
Warwick had only treated Mr. Mills on three occasions, so she “did not have a
longitudinal picture of his mental functioning,” and because the ALJ’s decision is
supported by other evidence in the record. (Doc. 21 at 9-11). The Court rejected these
contentions because they were not given by the ALJ as reasons for her rejection of Ms.
Warwick’s opinions; therefore, they were improper post hoc rationalizations by the
Commissioner. (Doc. 24 at 15-16). In addition, the Commissioner argued that the ALJ
properly discounted Ms. Warwick’s opinions because they were not supported by Ms.
Warwick’s own treatment notes. (Doc. 21 at 10). In considering this contention, the
Court reasoned that, even though Ms. Warwick noted that Mr. Mills’ memory was intact
and that he was alert and oriented at his visits with her, other findings in the record
supported Ms. Warwick’s opinions that Mr. Mills has multiple limitations. (Doc. 24 at 15).
Therefore, the Court found that the ALJ’s failure to account for how she resolved these
inconsistencies constituted legal error. Id. at 15-16.
The Commissioner now argues that her position below was substantially justified
with regard to the ALJ’s consideration of Ms. Warwick’s opinions. The Commissioner
first contends that she did not supply an improper post hoc rationalization by arguing
that Ms. Warwick did not have a longitudinal picture of Mr. Mills’ mental functioning.
(Doc. 27 at 3). The Commissioner states that this was not a post hoc rationalization
because the Commissioner “was expanding on the ALJ’s explicit statement that Ms.
Warwick had ‘three visits’ with [Mr. Mills] shown by the record, at which Plaintiff was
noted to be alert and oriented.” Id. (citing AR 25). Contrary to the Commissioner’s

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assertion, however, the ALJ did not state that one of her reasons for rejecting Ms.
Warwick’s opinions was the fact that she saw Mr. Mills only three times. Instead, the
ALJ stated she gave Ms. Warwick’s opinion little weight because it is not consistent with
her treatment notes, and then stated that Ms. Warwick “noted that [Mr. Mills’] memory
was intact and that he was alert and oriented at each of his three visits with her.” (AR
25). The Court, therefore, finds that the Commissioner was not substantially justified in
her contention that the ALJ properly rejected Ms. Warwick’s opinions because she did
not have a longitudinal picture of Mr. Mills’ mental functioning.
Next, the Commissioner contends she did not provide an improper post hoc
rationalization when she argued that Ms. Warwick’s opinions were inconsistent with
other opinions in the record. (Doc. 27 at 4). Because the ALJ discussed these other
opinions in her decision, the Commissioner contends that “it was reasonable to rely on
that as an additional basis for rejecting Ms. Warwick’s opinion.” Id. As explained in the
Memorandum Opinion and Order, however, the ALJ did not state that she rejected Ms.
Warwick’s opinions because they were inconsistent with other opinions in the record.
(Doc. 24 at 16). Moreover, Ms. Warwick’s opinions regarding Mr. Mills’ limitations are
consistent with other, similar findings in the record. See (AR 271, Dr. Hughson’s
findings of moderate limitations in carrying out instructions, working without supervision,
and interacting with the public; AR 40-41, Dr. Mohney’s findings of moderate limitations
in working without supervision, making simple work-related decisions, interacting with
the public and supervisors, and responding appropriately to changes in the workplace;
AR 53-54, Dr. Atkins’ findings of moderate limitations in maintaining attention and
concentration for extended periods, working without supervision, making simple work-

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related decisions, interacting with the public and supervisors, and responding
appropriately to changes in the workplace). Therefore, the Court finds that the
Commissioner was not substantially justified in her contention that the ALJ properly
rejected Ms. Warwick’s opinions because they were inconsistent with other opinions in
the record.
2. Dr. Mohney’s Opinions
Dr. Mohney conducted an MRFC Assessment on December 10, 2012. (AR 3941). In Section I of the MRFC, Dr. Mohney found that Mr. Mills has moderate limitations
in: understanding and remembering detailed instructions; carrying out detailed
instructions; maintaining attention and concentration for extended periods; sustaining an
ordinary routine without special supervision; making simple work-related decisions;
interacting appropriately with the general public; accepting instructions and responding
appropriately to criticism from supervisors; and responding appropriately to changes in
the work setting. (AR 40-41). In Section III of the MRFC, Dr. Mohney explained several,
but not all, of these findings in narrative form. As to Mr. Mills’ sustained concentration
and persistence capacities, Dr. Mohney stated that Mr. Mills has borderline intellectual
capacity, and that he requires limits in working without any supervision and in making
work-related decisions. (AR 40). For adaptation limitations, Dr. Mohney found that Mr.
Mills “could respond to changes in [the] workplace slowly.” (AR 41). Finally, Dr. Mohney
found that Mr. Mills “can understand, remember and carry out simple instructions, make
simple decisions, attend and concentrate for two hours at a time, interact adequately
with co-workers and supervisors, and respond appropriately to changes in a routine
work setting.” Id.

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In her decision, the ALJ noted that, on June 12, 2013, State Agency
psychological consultant Dr. Atkins affirmed Dr. Mohney’s findings. (AR 26 and 51). The
ALJ gave Dr. Mohney’s and Dr. Atkins’ opinions moderate weight, stating that “they are
experienced at reviewing records and assigning mental health restrictions,” but that
“more recent evidence dose [sic] support a finding that [Mr. Mills] would to [sic] better
with less interaction with the public and co-workers.” (AR 26). The ALJ translated Dr.
Mohney’s findings into only two nonexertional limitations: working with short and simple
instructions, and only occasional and superficial interaction with the general public and
co-workers. (AR 23).
In response to Mr. Mills’ Motion to Reverse or Remand, the Commissioner
argued that Dr. Mohney’s findings of moderate limitations were made in the Section I
worksheet portion of her assessment, which does not constitute an RFC assessment.
(Doc. 21 at 12). The Commissioner argued that the ALJ did not need to include the
moderate limitations indicated in Section I because she relied on Dr. Mohney’s Section
III narrative conclusion. Id. The Commissioner further argued that the ALJ’s RFC
determination was consistent with Dr. Mohney’s narrative conclusions. Id. at 13-14. The
Court disagreed, finding that the ALJ’s RFC determination failed to account for Dr.
Mohney’s findings that Mr. Mills requires limits in working without supervision, and has
moderate limitations in accepting instructions and responding appropriately to criticism
from supervisors. (Doc. 24 at 20-21).
In addition, the Commissioner relied on Smith v. Colvin, 821 F.3d 1264, 1269
(10th Cir. 2016), for her contention that the ALJ did not need to discuss Dr. Mohney’s
Section I findings because the ALJ relied on her Section III narrative. (Doc. 21 at 12,

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14). The Court rejected this contention, explaining that in Smith, the Tenth Circuit did
not base its holding on the fact that the ALJ relied on Section III rather than Section I.
(Doc. 24 at 21-22). The Court explained that a discrepancy between Sections I and III
“does not mean, of course, that the ALJ should turn a blind eye to any moderate
limitations enumerated in Section I that are not adequately explained in Section III.” Id.
at 22 (citing Lee v. Colvin, 631 Fed. Appx. 538, 541 (10th Cir. 2015) (unpublished)).
Therefore, the Court found that the ALJ was required to consider Dr. Mohney’s findings
in Section I that were not encompassed by her Section III narrative.
Finally, the Court rejected the Commissioner’s argument that the ALJ’s RFC
limiting Mr. Mills to unskilled work sufficiently captured Dr. Mohney’s findings. (Doc. 21
at 14). The Court explained that a limitation to unskilled work does not necessarily
address an individual’s mental limitations, and that Dr. Mohney’s findings regarding Mr.
Mills’ mental limitations could affect jobs classified as unskilled. (Doc. 24 at 22) (citing
Vigil v. Colvin, 805 F.3d 1199, 1204 (10th Cir. 2015)). The Court held that “[w]ithout
sufficient analysis from the ALJ or the VE as to these limitations, . . . the Court cannot
say that limiting Mr. Mills to unskilled work would accommodate these limitations.” Id.
The Commissioner now argues that her position was substantially justified with
regard to the ALJ’s consideration of Dr. Mohney’s opinions because agency policy and
Tenth Circuit case law support her contention that the ALJ’s RFC determination
adequately captured and accounted for the limitations found by Dr. Mohney. (Doc. 27 at
5-7). The Commissioner maintains that the ALJ was not required to include the various
limitations set forth in Section I of Dr. Mohney’s opinion because the ALJ relied on her
Section III narrative findings, and that the ALJ’s limitation to unskilled work

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accommodated Dr. Mohney’s findings of mental limitations. Id. Finally, the
Commissioner states that “the Court appeared throughout its decision to be primarily
troubled by the ALJ’s level of articulation,” and that, because there was evidence in the
record to support the ALJ’s decision, the Commissioner’s position was substantially
justified. Id. at 7-8.
Agency policy and Tenth Circuit case law explain that Section I of an MRFC is for
recording summary conclusions, and that Section III is the physician’s formal mental
RFC assessment; however, this guidance further instructs that the degree and extent of
limitations found in Section I must be described in narrative format in Section III. See
Social Security Administration’s Program Operations Manual System (“POMS”) POMS
DI 25020.010 B.1., 24510.060 B.4.a., 24510.063 B.2., and 24510.065 A; Carver v.
Colvin, 600 Fed. Appx. 616, 618-19 (10th Cir. 2015) (unpublished). Therefore, if a
consultant’s “Section III narrative fails to describe the effect that each of the Section I
moderate limitations would have on the claimant’s ability . . . the [MRFC] cannot
properly be considered part of the substantial evidence supporting an ALJ’s RFC
finding.” Carver, 600 Fed. Appx. at 619.
In her Section III narrative, Dr. Mohney accounted for many of the limitations she
found in Section I. See (AR 40-41). However, Dr. Mohney’s Section III narrative did not
account for her Section I findings that Mr. Mills has moderate limitations in his ability to
sustain an ordinary routine without supervision and in accepting instructions and
responding appropriately to criticism from supervisors. Id. Dr. Mohney’s opinions,
therefore, could not be considered substantial evidence to support the ALJ’s RFC
determination. See Carver, 600 Fed. Appx. at 619. Moreover, the ALJ’s RFC

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determination, which limited Mr. Mills to working with short and simple instructions and
only occasional and superficial interaction with the general public and co-workers, did
not account for these Section I findings, and also did not account for Dr. Mohney’s
Section III finding that Mr. Mills requires limits in working without supervision. Compare
(AR 23) with (AR 40-41). As discussed, the Court cannot “turn a blind eye to any
moderate limitations enumerated in Section I that are not adequately explained in
Section III.” Lee, 631 Fed. Appx. at 541. Finally, while the ALJ stated that she gave Dr.
Mohney’s opinions “moderate weight,” her implied rejection of some of Dr. Mohney’s
findings without explanation constitutes legal error. See Hamlin v. Barnhart, 365 F.3d
1208, 1219 (10th Cir. 2004) (“The ALJ may not pick and choose which aspects of an
uncontradicted medical opinion to believe, relying on only those parts favorable to a
finding of nondisability.”); Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008) (the
standard of review in a Social Security appeal is whether the Commissioner’s final
decision is supported by substantial evidence and whether the correct legal standards
were applied). The Court’s finding that the ALJ erred in failing to properly consider Dr.
Mohney’s opinions was not based on the ALJ’s “level of articulation,” but instead was a
finding of legal error and renders the Commissioner’s position below unreasonable,
especially since this area of law is not “unclear or in flux.” Cherry, 125 Fed. Appx. at 916
(“When an area of law is unclear or in flux, it is more likely that the government’s
position will be substantially justified.”) (citation omitted). Therefore, the Court finds that
the Commissioner’s position regarding the ALJ’s consideration of Dr. Mohney’s opinions
was not substantially justified.

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III.

Conclusion
For the reasons discussed above, the Court concludes that the Commissioner

was not substantially justified in her position in either the underlying agency action or
the subsequent litigation. Accordingly, the Court finds that Mr. Mills is entitled to an
award of attorney’s fees under EAJA. However, the Court will deny Mr. Mills’ request in
his reply brief for compensation for an additional four hours spent preparing his reply to
his motion for attorney fees. (Doc. 30 at 7). This request is improperly raised in a reply
brief so the Commissioner did not have an opportunity to respond. Moreover, the Court
finds that the amount of attorney fees initially requested in the motion is sufficient
compensation.
IT IS THEREFORE ORDERED that Mr. Mills’ Motion for Attorney Fees Pursuant
to the Equal Access to Justice Act, With Memorandum in Support, (Doc. 26), be
GRANTED and that attorney fees in the amount of $6,906.80 be awarded under the
Equal Access to Justice Act, 28 U.S.C. § 2412(d), and be made payable to Mr. Mills.
See Astrue v. Ratliff, 560 U.S. 586 (2010) (EAJA fees are paid to the plaintiff, not the
plaintiff’s attorney).
IT IS FURTHER ORDERED THAT, if Plaintiff’s counsel receives attorney fees
under both EAJA and 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s counsel
shall refund the smaller award to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575,
580 (10th Cir. 1986).

___________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATE MAGISTRATE JUDGE

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