Padula v. Astrue
Filing
32
DECISION AND ORDER denying Pltf's 26 Motion for Attorney Fees. Signed by Senior Judge Thomas J. McAvoy on 11/14/13. (sfp, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
GERARD PADULA,
Plaintiff,
v.
8:11-CV-00607
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,1
Defendant.
___________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION & ORDER
I.
INTRODUCTION
Plaintiff moves for an award of attorney’s fees under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412. The Commissioner opposes the motion, contending that
the Commissioner’s position was substantially justified. Plaintiff has filed a reply, arguing
that the Commissioner’s position was not substantially justified and seeking additional fees
for time expended in drafting the reply. The Court has considered all of these
submissions, and the record in this matter, in reaching its decision.
II.
BACKGROUND
Plaintiff filed an application for Supplemental Security Income on July 7, 2009 (Tr.
82-84, see Tr. 12, 37). He alleged that he was disabled since July 19, 2006 due to
1
On February 14, 2013, Carolyn W . Colvin becam e the Acting Com m issioner of Social Security. In
accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, she is substituted for Com m issioner
Michael J. Astrue as the defendant.
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depression, anxiety, substance abuse, and acid reflux (Tr. 53, 111). Plaintiff’s application
was denied (Tr. 41-45, 47-51). Plaintiff then requested a hearing before an administrative
law judge (“ALJ”) (Tr. 53). After a hearing on October 26, 2010 (Tr. 25-36), ALJ Carl E.
Stephan issued a decision on December 3, 2010 finding that Plaintiff was not disabled
because he had the residual functional capacity (RFC) to perform his past relevant work
as a landscaper. (T. 19, see also Tr. 12-20). Plaintiff requested that the Appeals Council
review the ALJ’s decision (Tr. 7), and on May 12, 2011, the Appeals Council denied
Plaintiff’s request (Tr. 1-3). The ALJ’s decision therefore became the Commissioner’s final
decision.
On June 1, 2011, Plaintiff filed a complaint in this court challenging the
Commissioner’s final decision. Plaintiff argued that the ALJ failed to properly apply the
treating physician rule; failed to properly use the “special technique” to evaluate the factors
set forth in Section 12.04 of the Listings to determine whether Plaintiff was disabled by his
mental illness; failed to properly determine Plaintiff’s RFC; and erred in finding that Plaintiff
was not credible. Defendant argued that the Commissioner’s decision was supported by
substantial evidence and should be affirmed.
On April 12, 2012, the Hon. Andrew T. Baxter, United States Magistrate Judge,
issued a Report and Recommendation (“R&R”) recommending that this Court affirm the
Commissioner’s final decision denying benefits and dismiss the complaint. Plaintiff filed
objections to the R&R, essentially arguing the same issues presented to Magistrate Judge
Baxter. The Commissioner responded, contending that Magistrate Judge Baxter properly
found that the Commissioner's decision to be supported by substantial evidence and that,
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in his objections, Plaintiff merely presented the same arguments raised in his initial
memorandum.
By Decision and Order dated July 16, 2012, this Court adopted the R&R in its
entirety, affirming the Commissioner’s decision and dismissing Plaintiff’s complaint.
Plaintiff appealed to the United States Court of Appeals for the Second Circuit.
In a Summary Order, the Second Circuit affirmed in part, vacated in part, and
remanded the case for further administrative proceedings. In reaching this decision, the
Second Circuit found that, at the third step of the five-step sequential analysis,
the ALJ did not err in concluding that Padula’s impairment did not meet the
Appendix 1 listing for § 12.04. Padula did not make the requisite showing
that he met the impairments listed at either § 12.04 B or C.
2nd Cir. Summary Order, p. 2.
However, the Second Circuit determined that the ALJ erred in his analysis at the
fourth step,2 writing:
In the instant case, the ALJ determined that Padula’s reported symptoms of nausea
and fatigue were not credible to the extent they were inconsistent with medical
evidence and Padula’s account of his daily activities. However, as these symptoms
were supported by the treatment records from Padula’s treating psychiatrist, Dr.
Astill-Vaccaro, and there was nothing in the description of Padula’s daily activities,
previous work history, or observations by any employees of the SSA that
undermined these claimed symptoms, the ALJ did not properly consider all of the
symptoms suffered by Padula in making his determination about Padula’s residual
functional capacity. Likewise, to the extent the ALJ found Padula not to be credible
based upon his description of these symptoms, we find that the ALJ erred because
the determination “did not comply with the ALJ’s obligation to consider ‘all of the
relevant medical and other evidence,’ 20 C.F.R. § 404.1545(a)(3), and cannot
2
At the fourth step, the ALJ assesses whether, “‘despite the claim ant’s severe im pairm ent, he or she
has residual functional capacity to perform his or her past work.’” 2nd Cir. Sum . Ord., p. 2 (quoting Shaw v.
Chater, 221 F.3d 126, 132 (2d Cir. 2000)(internal quotation m arks om itted)).
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stand.” Genier v. Astrue, 606 F.3d 46, 50 (2d Cir. 2010). Therefore, this case must
be remanded for further proceedings to determine Padula’s residual functional
capacity in light of “all of the relevant medical and other evidence.” 20 C.F.R. §
404.1545(a)(3)(emphasis added). In analyzing the record on remand, the ALJ
remains free to consider evidence regarding any effect Padula’s drug and alcohol
use may have had on his asserted symptoms, see Cage v. Comm’r of Soc. Sec.,
692 F.3d 118, 123 (2d Cir. 2012), and also to develop the administrative record to
the extent necessary to make this and any other determinations on the extent and
causes of Padula’s symptoms, see Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996)
(memorializing ALJ’s obligation to develop administrative record).
2nd Cir. Summary Order, p. 3 (emphasis in original).
Plaintiff’s other arguments presented on appeal were found to be without merit. Id.
The Second Circuit issued its mandate on May 14, 2013 and, on May 21, 2013, this
Court entered a Decision and Order and Amended Judgment remanding the matter to the
Commissioner for further proceedings consistent with the Second Circuit’s opinion.
Plaintiff filed the instant motion, initially seeking $7,391.23 for EAJA fees based on
40.1 attorney hours at a rate of $184.32 per hour.3 The Commissioner opposes the
motion on the ground that the Commissioner’s position was substantially justified. In
reply, Plaintiff argues that the position was not substantially justified and requests an
additional $3,226.12 (17.5 hrs. x $184.35) in attorney’s fees for counsel’s work in
preparing the reply papers.
III.
DISCUSSION
a. EAJA Fees
The high cost of litigation may deter individuals from seeking review of government
3
The hours are only for tim e spent litigating in the District Court. See May 29, 2013 Schneider Aff.
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decisions. The EAJA, which aims to reduce this barrier by allowing for an award of
attorney fees to successful litigants, Trichilo v. Secretary of Health and Human Services,
823 F.2d 702, 704 (2d Cir. 1987), provides that
a court shall award to a prevailing party . . . fees and other expenses . . .
incurred by that party in any civil action . . . brought by or against the United
States . . . 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)(emphasis added).
The government argues that even though Plaintiff is a prevailing party, see Shalala
v. Schaefer, 509 U.S. 292, 300-01 (1993), EAJA fees are not warranted because the
Commissioner’s position was substantially justified.
b. Substantially Justified
“Whether or not the position of the United States was substantially justified shall be
determined on the basis of the record (including the record with respect to the action or
failure to act by the agency upon which the action is based) which is made in the civil
action for which the fees and other expenses are sought.” 28 U.S.C. § 2412(d)(1)(B). The
government bears the burden of showing that its position was substantially justified.
Healey v. Leavitt, 485 F.3d 63, 67 (2d Cir. 2007). To meet its burden, the government
must make a strong showing that its action was “‘justified to a degree that could satisfy a
reasonable person.’” Healey, 485 F.3d at 67 (quoting Pierce v. Underwood, 487 U.S. 552,
565 (1988)). “Substantially justified” means “justified in substance or in the main.” Pierce,
487 U.S. at 565. Thus,
[t]he Commissioner's position “can be justified even though it is not correct,
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and ... it can be substantially (i.e., for the most part) justified if a reasonable
person could think it correct.” Pierce, 487 U.S. at 566 n. 2. Through this
qualification, the EAJA “protects the government when its case, though not
prevailing, has a reasonable basis in law and fact.” Cohen v. Bowen, 837
F.2d 582, 585 (2d Cir. 1988).
Lugo v. Astrue, 2012 WL 4026848, at *3 (W.D.N.Y. Sept. 12, 2012). This standard “‘is a
‘middle ground’ between the automatic awarding of fees to a prevailing party, and the
allowance of a fee award only where the government is arbitrary and frivolous.’” Id.
(quoting Cohen, 837 F.2d at 585, n. 4).
c. Parties’ Positions
In support of its contention that the Commissioner’s position was substantially
justified, the government argues:
[T]he Second Circuit vacated that portion of the ALJ’s decision that addressed
Plaintiff’s subjective complaints of fatigue and nausea, finding that the symptoms
were supported by Dr. Astill-Vaccaro’s treatment records, and that the ALJ had not
considered all of Plaintiff’s symptoms in determining Plaintiff’s residual functional
capacity. But, this does not mean that the government’s position was without
substantial justification. Indeed, the record shows that the ALJ explicitly addressed
Plaintiff’s symptoms in assessing his credibility (Tr. 19). In finding that Plaintiff’s
subjective symptoms were not fully credible, the ALJ specifically noted that office
notes from his treating medical sources “consistently reported that [plaintiff] had not
alleged any side effects from the use of medications” (Tr. 19). The record
supported this analysis. Dr. Astill-Vaccaro, Plaintiff’s treating psychiatrist, noted
that Plaintiff complained of nausea on only one occasion, and the psychiatrist did
not attribute it to his medication (Tr. 355). Dr. Astill-Vaccaro otherwise noted that
Plaintiff tolerated his medications well and denied any side effects (Tr. 299-300,
302-03, 305, 309-15, 318-119, 353, 355-56).
Additionally, Dr. Miller, Plaintiff’s primary-care physician, noted several times that
Plaintiff reported no side effects from his medications, and also noted that he was
not experiencing nausea (Tr. 255, 262, 263, 267, 268, 274, 282). Dr. Miller also
noted that, after initially complaining of fatigue, Plaintiff was treated for sleep apnea
and afterwards had no complaints of fatigue (Tr. 255, 262, 267, 273, 277, 283).
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In assessing plaintiff’s credibility, the ALJ also considered his reported daily
activities (Tr. 19). Plaintiff performed household chores, including washing dishes
preparing meals, vaccuming and doing laundry (Tr. 15, 19, 32, 121-24). He helped
his girlfriend care for her children (Tr. 19, 27, 31-32). He enjoyed fishing, playing
the guitar, playing video games, and attending movies (Tr. 32). The ALJ also
considered that Plaintiff’s treatment had been generally successful in controlling his
symptoms (Tr. 256, 262, 276, 281-82, 285, 290, 301, 304, 310, 313, 315-16,
318-20, 353, 355-56, 358). Given the amount of evidence that supported the
Commissioner’s finding regarding Plaintiff’s credibility, the Commissioner was
substantially justified in finding that despite Plaintiff’s medically determinable
impairments, his testimony regarding the intensity, persistence, and limiting effects
of his symptoms, and alleged side-effects from his medication, were not entirely
credible (Tr. 16, 19).
Govt. Opp. Mem. L., pp. 4-6 (citations omitted).
Plaintiff counters that “the Commissioner cherry picks ‘factoids’ in support of her
administrative and legal actions that were rejected by the Court of Appeals in its Decision,”
and that “[t]he Decision of the Second Circuit shows that the position of the Commissioner
in denying benefits to Mr. Padula was not reasonable.” Pl. Reply Mem. L., p. 5 (emphasis
in original).
d. Analysis
Although the Second Circuit directed that the matter be remanded to determine
“Padula’s residual functional capacity in light of all of the relevant medical and other
evidence,” it also held that
[i]n analyzing the record on remand, the ALJ remains free to consider
evidence regarding any effect Padula’s drug and alcohol use may have had
on his asserted symptoms, and also to develop the administrative record to
the extent necessary to make this and any other determinations on the
extent and causes of Padula’s symptoms.
2nd Cir. Summary Order.
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Thus, while the door remains open to whether Plaintiff will ultimately receive social
security benefits, the Second Circuit’s opinion is not a resounding rejection of the
Commissioner’s position in this matter.
Moreover, even though it was error for the ALJ to reject as incredible Plaintiff’s
reported symptoms of nausea and fatigue without taking into account the treatment
records from Dr. Astill-Vaccaro, a reasonable person reviewing the record would not
necessarily find the ALJ’s credibility determination - and the Commissioner’s defense of
that position - incorrect. The record indicates that Plaintiff complained of nausea on only
one occasion to Dr. Astill-Vaccaro; Dr. Astill-Vaccaro did not attribute this nausea to
Plaintiff’s medication which Dr. Astill-Vaccaro noted was well tolerated; Dr. Miller, Plaintiff's
primary-care physician, noted that Plaintiff reported no side effects from his medications
and that Plaintiff was not experiencing nausea; Dr. Miller also noted that, after initially
complaining of fatigue, Plaintiff was treated for sleep apnea and afterwards had no
complaints of fatigue; and the ALJ considered Plaintiff’s reported daily activities in
assessing Plaintiff’s credibility. While the ALJ erred in failing to consider all of the
evidence, a reasonable person would not necessarily find that the ALJ reached an
incorrect result or that the Commissioner was substantially unjustified in defending the
position. This case is unlike others where an ALJ, for instance, unreasonably ignores or
mischaracterizes probative medical evidence impacting a plaintiff’s condition and then is
defended by the Commissioner. See e.g. Ericksson, 557 F.3d at at 83 (Commissioner’s
position not substantially justified where a physician’s report of the plaintiff’s back
condition was summarized by the ALJ as simply being “noted, when the doctor in fact
8
made an independent diagnosis”).
In light of the record in this matter, and considering the arguments presented to this
Court and to Magistrate Judge Baxter, the Court finds that the government has
established that the Commissioner’s position was justified to a degree that could satisfy a
reasonable person that it was correct. That is, the Commissioner’s position was
“substantially justified” as the term is used in the EAJA. To hold otherwise in this case
would be tantamount to automatically awarding fees to a prevailing party and would read
out of the statute the exclusion for those situations when the Court finds the position of the
United States to be substantially justified. See 28 U.S.C. §2412 (d)(1)(A).
IV.
CONCLUSION
Accordingly, Plaintiff’s motion for EAJA fees [dkt. # 26 ] is denied.
IT IS SO ORDERED.
Dated: November 14, 2013
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