Bunger v. Commissioner of Social Security Administration

Filing 25

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Motion for Attorney Fees Under the Equal Access to Justice Act (Doc. 22 ) be GRANTED, in part, to the extent Plaintiff is entitled to an EAJA award in the total amou nt of $2,987.50. Plaintiffs Motion for an EAJA award totaling $4,202.68 should be DENIED; 2. Defendant be directed to verify, within twenty-one days of an Order adopting this Report and Recommendations, whether or not Plaintiff owes a pre- existing debt to the United States subject to offset. If no such pre-existing debt exists, Defendant be ordered to pay the EAJA award directly to Plaintiff's counsel; and, 3. The case remains terminated on the docket of this Court. Objections to R&R due by 6/7/2012. Signed by Magistrate Judge Sharon L Ovington on 5/21/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
JUSTIN BUNGER,

:

Plaintiff,

:
Case No. 3:08cv00275

vs.

:

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

Plaintiff initially brought this case seeking judicial review, under the provisions of
42 U.S.C. § 405(g), of the Social Security Administration’s decision to deny his
application for Supplemental Security Income. The Court previously remanded the case
for further administrative proceedings, and the Clerk of Court entered Judgment in
Plaintiff’s favor and against the Commissioner. (Doc. #s 19-21).
The case is presently before the Court on Plaintiff’s Motion for Attorney Fees
Under the Equal Access to Justice Act (EAJA) (Doc. #22), the Commissioner’s Response
(Doc. #24), and the record as a whole. Plaintiff specifically seeks an award of attorney
fees in the amount of $4,202.68, for 5.0 hours of work before the Court in 2008 at an
hourly rate of $170.77 and 19.4 hours of work before the Court in 2010 and 2011 at an

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Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

hourly rate of $172.62. (Doc. #22 at 1). The Commissioner contends that an award of
EAJA attorney fees is not warranted in this case. (Doc. #24 at 1-3). If Plaintiff is entitled
to attorney fees, the Commissioner alternatively argues that the fees requested are
excessive and any award granted should be paid directly to Plaintiff, instead of his
counsel. (Doc. #24 at 4-6).
The EAJA provides attorney fees to a party who prevails in a civil action against
the United States “when the position taken by the Government is not substantially
justified and no special circumstances exist warranting a denial of fees.” Bryant v.
Comm’r of Soc. Sec., 578 F.3d 443, 445 (6th Cir. 2009) (citing 28 U.S.C. §
2412(d)(1)(A)). In the present case, Plaintiff became the prevailing party when he
obtained a reversal and remand for further administrative proceedings. See Shalala v.
Schaefer, 509 U.S. 292, 300-302 (1993). The parties’ dispute thus focuses on whether the
Government’s position in support of the ALJ’s decision was substantially justified. See,
e.g., Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541 (1988)
A position is substantially justified when it is “‘justified in substance
or in the main’ – that is, justified to a degree that could satisfy a reasonable
person.” Pierce, 487 U.S. at 565, 108 S.Ct. 2541. Stated otherwise, a
position is substantially justified when it has a “reasonable basis both in law
and fact.” Id. The fact that . . . the Commissioner’s position was
unsupported by substantial evidence does not foreclose the possibility that
the position was substantially justified. See id. at 569, 108 S.Ct. 2541;
Jankovich v. Bowen, 868 F.2d 867, 870 (6th Cir. 1989). Indeed, “Congress
did not . . . want the ‘substantially justified’ standard to ‘be read to raise a
presumption that the Government position was not substantially justified
simply because it lost the case. . . .’” Scarborough [v. Principi, 541 U.S.
401, 415, 124 S.Ct. 1856, 1866 (2004)] (quoting Libas, Ltd. v. United
States, 314 F.3d 1362, 1365 (Fed. Cir. 2003)).
Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). The Government bears the
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burden of establishing that its position was substantially justified. Scarborough, 541 U.S.
at 414-15, 124 S.Ct. at 1865-66. In the present case, the Government argues that “[t]he
Commissioner was substantially justified in defending this case because this Court found
that this case should be remanded, not for payment of benefits but for further
development.” (Doc. #24 at 2). The Government contends that its position defending
this case “was at least reasonable and substantially justified,” despite noting the fact that
this Court found “the ALJ did not properly weigh the physicians’ opinions with respect to
all the factors used for assessing medical source opinions,” and that “the ALJ provided
‘little analysis’ of the mental health opinions in arriving at Plaintiff’s mental limitations.”
(Id. at 3). The Government also argues its position to defend the ALJ’s decision was
substantially justified because the ALJ did not ignore the medical source opinions, even
though the Court found “his analysis of the evidence fell short of what would be required
to meet the substantial standards.” (Id.). Plaintiff contends “[t]he ALJ did not act
reasonably when he rejected the opinions supporting disability by treating and examining
physicians, Dr. Lehner, Dr. Ratliff, and Dr. Geisel, since there is a complete failure to
evaluate the consistency of these opinions, one with the other, as required.” (Doc. #22 at
3).
Although the ALJ may not have entirely ignored all medical source opinions, such
a fact does not provide the Government with substantial justification for supporting an
ALJ’s decision that is inconsistent with Social Security Regulations, Rulings, and
relevant case law – especially where, as in this case, it is clear the ALJ did not properly
weigh the physicians’ opinions nor provide more than a very limited analysis of the
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mental health opinions regarding Plaintiff’s mental limitations. The Court previously
explained:
[T]he ALJ’s application of the required criteria to the medical source
opinions and his failure to apply the required criteria to the opinions of Dr. Rath is
problematic and, ultimately, not supported by substantial evidence.
Beginning with Dr. Rath, the ALJ based his assessment of Plaintiff’s
residual functional capacity primarily on Dr. Rath’s opinions. In doing so the ALJ
found that Dr. Rath’s opinions represented “a credible estimation of the claimant’s
capabilities and a realistic compromise of the various assessments of the claimant’s
functional capacity provided by treating, examining, and evaluating medical
sources.” (Tr. 33). The ALJ did not, however, apply any of the required legal
criteria – such as supportability, consistency, and specialization – to Dr. Rath’s
opinion. This constituted a failure to apply the correct legal criteria because the
Regulations and Rulings required the ALJ to weigh the opinions of one-time
examining physicians and record-reviewing physicians under the regulatory factors
such as supportability, consistency, and specialization. See 20 C.F.R. §419.927(d),
(f); see also Social Security Ruling 96-6p, 1996 WL 374180 at *2. The
Regulations appear to emphasize this requirement by reiterating it no less than
three times. See 20 C.F.R. §416.927(d) (“we consider all of the following factors
in deciding the weight to give any medical opinion....”); see also 20 C.F.R.
§416.927(f)(ii) (factors apply to opinions of state agency consultants); 20 C.F.R.
§416.927(f)(iii) (same as to medical experts’ opinions); Social Security Ruling 966p, 1996 WL 374180 at *2 (same).
Ruling 96-6p reinforces this:
The Regulations provide progressively more rigorous tests for weighing
opinions as the ties between the source of the opinion and the individual
become weaker. For example, the opinions of physicians or psychologists
who do not have a treatment relationship with the individual are weighed by
stricter standards, based to a greater degree on medical evidence,
qualifications, and explanations for the opinions, than are required of
treating sources.
For this reason, the opinions of State agency medical and
psychological consultants and other program physicians and
psychologists can be given weight only insofar as they are supported
by evidence in the case record, considering such factors as the
supportability of the opinion in the evidence including any evidence
received at the administrative law judge and Appeals Councils levels
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that was not before the State agency, the consistency of the opinion
with the record as a whole, including other medical opinions, and
any explanation for the opinion provided by the State agency
medical or psychological consultant or other program physician or
psychologist. The adjudicator must also consider all other facts that
could have a bearing on the weight to which an opinion is entitled,
including any specialization of the State agency medical or
psychological consultant.
Soc. Sec. R 96-6p, 1996 WL 374180 at *2.
In light of the above authority, the ALJ’s failure to apply any of the
required regulatory factors was no minor error; instead it was essential because Dr.
Rath provided no meaningful explanation in support of his opinions, see Tr. 18690, and because he reviewed the file in May 2003 – before the record contained
evidence and opinions concerning Plaintiff’s fibromyalgia and its impact on his
work abilities.
Plaintiff’s primary care physician, Dr. Ratcliff, and his treating orthopedist,
Dr. Lehner, both found limitations inconsistent with an ability to sustain even
sedentary work on a regular and continuing basis. See Tr. 317-21, 357-61. Dr.
Ratcliff based his opinion on Plaintiff’s muscle pain, trigger points, and
examination at the Cleveland Clinic. See Tr. 357. Dr. Lehner cited to the
degenerative disc disease at L4-5 and L5-S1 documented on MRI to support his
findings. See Tr. 317. These physicians thought that Plaintiff could not lift more
than 5-10 pounds. See Tr. 318, 358. Both felt that Plaintiff would likely miss
work more than 3 times a month due to his impairments. See Tr. 321, 361.
In addition, Dr. Giesel, who completed interrogatories in May 2005, more
recently than Dr. Rath, did not think Plaintiff could perform more than sedentary
work. While she thought he could perform such work for 40 hours per week, she
was not asked how often Plaintiff was likely to miss work. (Tr. 394).
The ALJ rejected all three of these opinions. He asserted that Dr. Lehner
and Dr. Ratcliff reached their conclusions “based on uncritical acceptance of the
claimant’s subjective complaints and allegations.” (Tr. 31). Dr. Lehner, however,
who had treated Plaitniff since age 12 for his significantly degenerative spine
relied on MRI evidence. The MRI showed significant degenerative changes and
multiple levels from L2 through S1. At L3-4 and L5-S1, bulging discs neared the
nerve roots; at L4-5 the bulging disc clearly touched the nerve root before it
existed the neural foraminal. (Tr. 246). Dr. Lehner noted that the disc changes
seen on the MRI were more common in a forty-year old spine. (Tr. 245). Dr.
Ratcliff, moreover, not only relied on the degenerative changes but also relied on
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the evidence (e.g., tender points) of Plaintiff’s fibromyalgia, an aspect of the case
that the ALJ did not meaningfully consider or address.
The ALJ noted that Dr. Giesel clearly based her opinion on Plaintiff’s
subjective pain complaints. (Tr. 32). Dr. Giesel’s report, however, specifically
notes the various exhibits that document the various medical conditions of record,
including fibromyalgia, obesity, degenerative disc disease, and chronic pain
syndrome. See Tr. 394.
Completely missing from the ALJ’s decision is the consistency of these
opinions – one with the other – one of the factors that must be considered in
evaluating treating physician and other medical source opinion. See 20 C.F.R. §
416.1927(d). Further, while the ALJ dismisses Dr. Giesel’s opinion in part
because she had no treatment or examining relationship with the claimant (Tr. 32),
he fails to note that the reviewing Ohio BDD physician, Dr. Rath, upon whose
opinion he relied, also had no treatment or examining relationship with Plaintiff.
See Tr. 33. The opinions of a state agency medical source generally deserve less
weight than that of examining physicians who had access to the entire medical
record. See Soc. Sec. Ruling 96-6p, 1996 WL 374180 at *2 (In analyzing the
supportability of a state agency physician, the ALJ must consider whether he or
other physicians had access to evidence that was not available to the state agency
physician).
Turning to Plaintiff’s mental work abilities, the ALJ found that Plaintiff’s
only mental limitation was an inability to work with the general public. See Tr. 36.
In reaching this finding, the ALJ provides little analysis of the mental health
opinions of record, including that of the consultative examiner, Dr. Trevino, and
the opinions of Drs. Lehner and Ratcliff. See generally Tr. 33-36.
Dr. Trevino found significant limitations on Plaintiff’s mental work
abilities. Specifically, he noted that Plaintiff would have difficulty with social
interaction. He also noted that Plaintiff was “in constant pain” and therefore was
unable to interact in a social manner. He quickly becomes exhausted to the extent
that he has difficulty raising or lifting his arms and walking. He indicates at times
he feels so exhausted that he cannot move and his emotions take over and he can
cry up to 45 minutes non-stop. He relates that this has happened on at least two
occasions in the school environment which has caused him considerable stress and
embarrassment. (Tr. 259). Because of his problems, Dr. Trevino did not think
Plaintiff would be able to tolerate stress either in the home or at a work related
environment. Dr. Trevino diagnosed major depression, recurrent, and severe. (Tr.
260).
In other words, Dr. Trevino diagnosed a much more significant impairment
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on Plaintiff’s mental work abilities than the ALJ found. Dr. Trevino’s opinion is
not inconsistent with the treatment record from Dr. Wade. Indeed, from July 2004
through March 2007 (when Dr. Wade left the practice) the record documents
approximately 80 counseling sessions, with the bulk of these sessions dealing with
Plaintiff’s focus on his chronic pain. See Tr. 432-74, 571-614. The ALJ
overlooked or ignored the fact that Plaintiff’s pain resulted in limitations on his
ability to perform the mental demands of work on a sustained basis, as documented
by Plaintiff’s treating physicians. Dr. Lehner specifically thought Plaintiff’s pain
would interfere with his ability to perform many of the mental demands of work,
such as being prompt and regular in attendance, because he could not do anything
very quickly and he had days where he just hurt tremendously. Dr. Lehner did not
think that Plaintiff had the coordinative skills to work with other people because he
was so focused on his back pain. (Tr. 325). Dr. Lehner also thought that pain
would get in the way of Plaintiff’s ability to maintain concentration and attention
for extended periods of time. (Tr. 328, 333). Likewise, Dr. Lehner believed that
Plaintiff’s ability to complete normal workday and workweek without interruption
from psychologically and physically based symptoms would be affected by pain.
Id.
Dr. Ratcliff reached similar conclusions. He noted that the interplay
between fibromyalgia, depression, and low back pain resulted in significantly
greater impairment then any condition alone. (Tr. 364). Dr. Ratcliff felt that
Plaintiff’s pain would interfere with his ability to perform many of the mental
demands of work on a sustained basis. (Tr. 365-70).
The ALJ’s decision also provides no reason for rejecting the opinions of Dr.
Trevino. While Dr. Trevino was not a treating physician, his opinion required
analysis under the regulations. 20 C.F.R. § 416.927(d). At best, the ALJ
substituted his own lay review of the medical evidence for that of the medical
experts. This constitutes error. “[A]n ALJ must not substitute his own judgment
for a physician’s opinion without relying on other evidence or authority in the
record.” Clifford v. Apfel, 227 F.2d 863, 870 (7th Cir. 2000); see Rosa v. Callahan,
168 F.3d 72, 78-79 (2nd Cir. 1999) (“[T]he ALJ cannot arbitrarily substitute his
own opinion for competent medical opinion”).
Accordingly, Plaintiff’s contentions are well taken.
(Doc. #19 at 20-26).
Although a “reversal of the denial of benefits and a remand for clarification does
not automatically mean the Commissioner’s decision to defend the ALJ’s decision was

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unreasonable,” Anderson v. Commissioner of Social Sec., 1999 U.S. LEXIS 29996 at *13
(6th Cir. 1999); see Howard, 376 F.3d at 554, the significance of the ALJ’s error in
failing to properly weigh the physicians’ opinions, as well as the lack of a proper analysis
of mental health opinions of record, deprive the Government’s defense of the ALJ’s
decision of a reasonable basis in fact and law. The Commissioner, therefore, has not met
his burden of establishing that his support for the ALJ’s decision was substantially
justified or that an EAJA award to Plaintiff will be unjust. Howard, 376 F.3d at 554
(“Under the circumstances of this case, where the administrative law judge was found to
have selectively considered the evidence in denying benefits, we hold that the
Commissioner’s decision to defend the administrative law judge's denial of benefits is
without substantial justification.”).
Accordingly, Plaintiff is entitled to an EAJA award.
Although Plaintiff is entitled to an EAJA award, the Government argues that “his
EAJA petition requests fees that are not reasonable.” (Doc. #24 at 4). The Government
notes that “Plaintiff’s counsel seeks to charge the government for a total of 24.40 hours of
work, which includes 4.30 hours for pre-litigation review and various tasks with respect
to preparing the complaint,” and that “[t]his time seems excessive in light of the fact that
Plaintiff’s counsel[’s] firm was extensively involved in the administrative proceedings
and had represented Plaintiff since 2004.” (Id. at 5). The Government also argues the
case “was a relatively routine, disability case. The issues involved the ALJ’s weighing of
the evidence and evaluation of impairments. These issues are typically seen in Social
Security Disability cases that reach district court.” (Id.).
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Upon review of the time sheet submitted by Plaintiff’s counsel, the Court finds the
entry of 1 hour related to the Complaint completed on 7/29/2008 to be excessive. (Doc.
#22-1 at 1). Plaintiff’s Complaint appears to derive from a form with the significant
information added. Counsel’s billing entry states, “CREATE: Complaint to SSA
Commissioner, civil cover sheet and 4 summons.” (Id.). It was not reasonable for such
an experienced and knowledgeable attorney to spend one full hour performing such work
when ½ hour would have reasonably sufficed. Accordingly, the number of hours Plaintiff
requests for work performed in 2008 must be reduced by ½ hour. Cf. Davenport v.
Astrue, 2008 WL 2691115 at *8 (N.D. Ind. 2008) (attorney may not obtain fees for time
spent on clerical tasks). No other amount of time listed appears excessive, nor has the
Government otherwise challenged the reasonableness of any specific entry on the time
sheet.
An additional issue remains that must be addressed by this Court: Plaintiff’s
counsel seeks to increase the $125 hourly rate set by Congress in 1996 to $170.77 per
hour for work performed in 2008, and $172.62 per hour for work performed in 2010 and
2011. Counsel states that “[a]ttached is information from the United States Department
of Labor showing the increases in cost of living in this area since March, 1996 totaling
36.6% as of 2008, making the hourly rate $170.77 for hours in 2008, and 38.09% as of
2010 making the hourly rate $172.62 for hours in 2010.” (Doc. #22 at 3). Attached to
Plaintiff’s Motion is also a list of the services Plaintiff’s counsel performed in this case,
adding up to 24.40 hours of attorney work. (Doc. #22-1 at 1-2).
“In requesting an increase in the hourly-fee rate, Plaintiffs bear the burden of
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producing appropriate evidence to support the requested increase. Plaintiffs must
‘produce satisfactory evidence – in addition to the attorney’s own affidavits – that the
requested rates are in line with those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience, and reputation.” Bryant, 578 F.3d at
450 (internal citation omitted). “In accordance with the Sixth Circuit decision in Bryant,
the submission of the Consumer Price Index, standing alone, is insufficient to satisfy the
burden of proving that the higher hourly rate requested by counsel is justified.” Douglas
v. Astrue, Commissioner of Social Sec., 2012 WL 931100 at *2 (S.D. Ohio, March 19,
2012)(Rice, D.J.). Counsel has offered no affidavit or other evidence showing that the
requested rate is “‘in line with those prevailing in the community for similar services
offered by lawyers of reasonably comparable skill, experience, and reputation . . . .’” Id.
(quoting Bryant, 578 F.3d at 450). Plaintiff’s counsel, therefore, has not met his burden
of showing that the increase he requested in the statutory cap of $125 per hour is
warranted. See id.
Accordingly, Plaintiff is entitled to an EAJA award of attorney fees calculated as
follows: 23.90 (hours of attorney work, including ½ hour reduction) x $125 = $2,987.50.
Plaintiff’s counsel requests payment of an EAJA award directly to him, and has
attached an assignment of fees from Plaintiff. (Doc. #22-1 at 3). Defendant argues
payment of any fees awarded should not be made directly to Plaintiff’s counsel, and that
“the government will evaluate the propriety of directing payment to the attorney pursuant
to an assignment after the award has been made.” (Doc. #24 at 5). Defendant’s
opposition is based on Ratliff v. Astrue, __ U.S. __, 130 S.Ct. 2521, 2524 (2010), in
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which the Court held that a Ҥ2412(d) fees award is payable to the litigant and is therefore
subject to a Government offset to satisfy a pre-existing debt that the litigant owes the
United States.” In so holding, the Court recognized that historically the Commissioner
paid EAJA fees directly to a prevailing plaintiff’s attorney. __ U.S. at __, 130 S.Ct. at
2528-29. The Court further noted that, based on the record before it, “the Government
has since continued the direct payment practice only in cases where the plaintiff does not
owe a debt to the [G]overnment and assigns the right to receive the fees to the attorney.”
Id. at 2529 (internal quotation marks omitted).
Although Defendant notes it will review whether to directly pay an award to
Plaintiff’s counsel after an award has been made, it has not placed into the record at this
time any evidence tending to show that Plaintiff, in fact, owes a pre-existing debt to the
United States that might cause his EAJA award to be subject to an offset under Ratliff.
As the Defendant effectively acknowledges that it does not know whether Plaintiff owes a
pre-existing debt to the federal government at this time, no ripe Ratliff issue currently
exists. This conclusion is confirmed by Ratliff itself, where the government sought an
EAJA offset based on its knowledge that the plaintiff owed it a debt that pre-dated the
district court’s approval of the EAJA award. 130 S.Ct. at 2424-25. In the present case,
the Commissioner appears to lack such knowledge, and accordingly, there is no ground
for the Commissioner to avoid or delay honoring Plaintiff’s assignment of his EAJA fees
to counsel. Cf. Ratliff, __ U.S. at __, 130 S.Ct. at 2530 (“the litigant’s obligation to pay
her attorney is controlled not by the EAJA but by contract and the law governing that
contract.”) (Sotomayer, J., concurring).
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IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Motion for Attorney Fees Under the Equal Access to Justice Act
(Doc. #22) be GRANTED, in part, to the extent Plaintiff is entitled to an
EAJA award in the total amount of $2,987.50. Plaintiff’s Motion for an
EAJA award totaling $4,202.68 should be DENIED;

2.

Defendant be directed to verify, within twenty-one days of an Order
adopting this Report and Recommendations, whether or not Plaintiff
owes a pre-existing debt to the United States subject to offset. If no such
pre-existing debt exists, Defendant be ordered to pay the EAJA award
directly to Plaintiff’s counsel; and,

3.

The case remains terminated on the docket of this Court.

May 21, 2012

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen (14) days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen days because this Report is being served by one of
the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party’s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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