Farmer v. Commissioner of SSA

Filing 27

REPORT AND RECOMMENDATIONS re 21 MOTION for Attorney Fees - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiffs Motion for an Award of Attorney Fees Pursuant to the Equal Justice Act (Doc. # 21 ) is GRANTED; Plaintiff is entitled to an EAJA award in the amount of $4,311.32 in attorney fees plus $350.00 in costs, equaling a total EAJA award of $4,661.32; and 2. The case remain terminated on the docket of this Court. Objections to R&R due by 10/29/2012. Signed by Magistrate Judge Sharon L Ovington on 10/10/12. (pb1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
LEEANNA K. FARMER,
Plaintiff,

:
:
Case No. 3:10cv00066

vs.

:

MICHAEL J. ASTRUE,

:

Commissioner of the Social
Security Administration,

District Judge Walter Herbert Rice
Magistrate Judge Sharon L. Ovington

:

Defendant.

:

REPORT AND RECOMMENDATIONS1

Plaintiff brought this case seeking judicial review of the Social Security
Administration’s decision to deny her applications for Disability Insurance Benefits and
Supplemental Security Income. The Court previously vacated the final administrative
decision, which had denied Plaintiff’s applications for Supplemental Security Income and
Disability Insurance Benefits. The Court reasoned:
[A] judicial award of benefits is warranted in the present case, given
that the evidence overwhelmingly shows that Plaintiff meets or equals the
criteria of Listing 12.04. In short, the evidence overwhelmingly shows a
medically documented persistence, either continuous or intermittent, of at
least four of the depressive syndromes set forth in Subparagraph A and
marked difficulties in maintaining social functioning, concentration,
persistence or pace and repeated episodes of extended decompensation, as
required by Subparagraph B.
1

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

(Doc. #19, PageID at 140).
The case is presently before the Court on Plaintiff’s Motion For Attorney Fees
Under The Equal Access To Justice Act (EAJA) 28 U.S.C. Section 2412(d)(1)(A) (Doc. #
21), the Commissioner’s Memorandum in Opposition (Doc. # 22), and the record as a
whole. Plaintiff seeks an EAJA award of $4,311.32 in attorney’s fees plus $350 in costs.
(Doc. # 21, PageID at 150). The Government contends that an EAJA award is not
warranted because its position in support of the Administrative Law Judge was
substantially justified.
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.
Commissioner of Social 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 she
obtained a remand, under sentence four of 42 U.S.C. §405(g), 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
burden of establishing that its position was substantially justified. Scarborough, 541 U.S.
at 414-15, 124 S.Ct. at 1865-66.
The Government contends that its responses to Plaintiff’s statement of errors were
substantially justified for several reasons. Beginning with Plaintiff’s treating psychiatrist,
Dr. Smith, the Government contends the Administrative Law Judge (ALJ) gave good
reasons for discounting Dr. Smith’s opinions, including, but not limited to, the assertion
that Dr. Smith’s opinions contained essentially no objective support and very little
explanation. The Government further contends that it was substantially justified because
(1) the ALJ properly relied on Dr. Goren, the testifying medical expert, as the basis for
concluding that Plaintiff’s fibromylagia was not a severe impairment, and (2) the ALJ
properly rejected Dr. Burks’ disability opinion as wholly lacking objective support and as
otherwise unsupported by the record.
The Government’s reasons for supporting the ALJ’s decision with regard to the
medical source opinions fall short of establishing substantial justification because the
ALJ’s evaluation of Drs. Smith, Goren, and Burks conflicted with Social Security
Regulations, the applicable Social Security Ruling, and case law. The Court previously
detailed the ALJ’s errors in this case:

The ALJ rejected the opinion of Dr. Smith, Plaintiff’s treating
psychiatrist, explaining, “He provided no objective support for his
conclusion and his opinion is not supported by treatment notes of record.
As the opinion is not well supported by the record, it cannot be accepted.”
(Tr. 33). Although the ALJ’s reasons were legally sufficient to justify not
placing controlling weight on Dr. Smith’s opinion, Blakley, 581 F.3d at 406
(6th Cir. 2009), the ALJ’s brief consideration of Dr. Smith’s opinion
contains no indication that he weighed it under the remaining factors as the
Regulations mandate. This constituted error. “If the ALJ does not accord
controlling weight to a treating physician, the ALJ must still determine how
much weight is appropriate by considering a number of factors, including
the length of the treatment relationship and the frequency of the
examination, the nature and extent of the treatment relationship,
supportability of the opinion, consistency of the opinion with the record as a
whole, and any specialization of the treating physician.” Blakley, 581 F.3d
at 406 (citing Wilson, 378 F.3d at 544).
The ALJ committed the same error when addressing the opinions of
Plaintiff’s treating physician, Dr. Burks. This appears in ALJ’s brief
explanation, “Dr. Burks, a primary care physician, reported that the
claimant was disabled due to fibromyalgia, but he provided no objective
support for this conclusion. The opinion cannot be accepted as it is not well
supported by the record.” (Tr. 32-33). There is no indication that the ALJ
continued to weigh Dr. Burks’s opinions under any of the remaining
regulatory factors.
By not continuing to weigh these treating physicians’ opinions, the
ALJ failed to apply the legal criteria mandated by the Regulations, 20
C.F.R. §404.1527(d)(3)-(5); the applicable Social Security Ruling, 96-2p,
1996 WL 374188; and case law. Ruling 96-2p explains:
Adjudicators must remember that a finding that a
treating source medical opinion is not well-supported by
medically acceptable [data] ... or is inconsistent with other
substantial evidence in the case record means only that the
opinion is not entitled to ‘controlling weight,’ not that the
opinion should be rejected.....
96-2p, 1996 WL 374188 at *4. Case law likewise reflects the need for
continued weighing under the Regulations: “[I]n all cases there remains a
presumption, albeit a rebuttable one, that the opinion of a treating physician
[or psychologist] is entitled to great deference, its non-controlling status
notwithstanding.” Rogers, 486 F.3d at 242. Accordingly, the ALJ’s failure

to continue to weigh the opinions of Drs. Smith and Burks in this manner
constituted a failure to apply the correct legal criteria to their opinions.
In addition, the ALJ erred at Step 3 of the sequential evaluation by
fully crediting the medical expert, Dr. Goren, who testified at during the
third administrative hearing, without weighing his opinions under any of the
required regulatory factors. The ALJ merely wrote, “The expert medical
opinion provided by Dr. Goren that the severity of the claimant’s
impairments did not meet or medically equal any of the Listings is
adopted.” (Tr. 32). This constituted a failure to apply the correct legal
criteria because the Regulations and Rulings required the ALJ to evaluate
the opinions of Dr. Goren – a record-reviewing physician – under the
regulatory factors including supportability, consistency, and specialization.
See 20 C.F.R. §404.1527(d), (f); see also Social Security Ruling 96-6p,
1996 WL 374180. The Regulations appear to emphasize this requirement
by reiterating it no less than three times. See 20 C.F.R. §404.1527(d) (“we
consider all of the following factors in deciding the weight to give any
medical opinion....”); see also 20 C.F.R. §404.1527(f)(ii) (factors apply to
opinions of state agency consultants); 20 C.F.R. §404.1527(f)(iii) (same as
to medical experts’ opinions); Social Security Ruling 96-6p, 1996 WL
374180 at *2 (same).
Returning briefly to the ALJ’s rejection of Dr. Burks’ opinion about
the impact Plaintiff’s fibromyalgia had on her ability to work, the ALJ erred
by requiring objective evidence. “[F]ibromyalgia can be a severe
impairment and that, unlike medical conditions that can be confirmed by the
existence of objective testing, fibromyalgia patients present no objectively
alarming signs.... Rather, fibromyalgia patients ‘manifest normal muscle
strength and neurological reactions and have a full range of motion.”
Rodgers, 486 F.3d at 243-44 (internal citations omitted). It was therefore
error for the ALJ to require objective medical evidence in support of Dr.
Burks’ opinion regarding the severity of Plaintiff’s fibromyalgia. See id;
see also Kalmbach v. Commissioner of Soc. Sec., unpublished op., 2011
WL 63602 at *9 (“Thus, the ALJ’s contention that the treating physicians’
assessments and opinions were unsupported by other objective medical
evidence was simply beside the point.”).
There remains the possibility that the ALJ’s errors were harmless,
particularly when viewed in light of the Commissioner’s arguments. Yet,
“[a] court cannot excuse the denial of a mandatory procedural requirement
protection simply because, as the Commissioner urges, there is sufficient
evidence in the record for the ALJ to discount the treating source’s opinion
and, thus, a different outcome on remand is unlikely. ‘[A] procedural error

is not made harmless simply because the [aggrieved party] appear to have
had little chance of success on the merits anyway.’ To hold otherwise, and
to recognize substantial evidence as a defense to non-compliance with
§1527(d)(2), would afford the Commissioner the ability to violate the
regulation with impunity and render the protections promised therein
illusory. The general administrative law rule, after all, is for a reviewing
court, in addition to whatever substantive factual or legal review is
appropriate, to ‘set aside agency action ... found to be ... without observance
of procedure required by law.’” Wilson, 378 F.3d at 546 (internal citations
omitted). Although the Sixth Circuit has left open the issue of whether a de
minimis violation of the procedural requirements of §404.1527(d)(2) can
constitute harmless error, a review of the opinions provided by treating
medical sources, Dr. Smith and Dr. Burks, reveals no indication that their
opinions are “so patently deficient that the Commissioner could not
possibly credit it....” Wilson, 378 F.3d at 547.
(Doc. #14, PageID at 114-17).
Although a “reversal of the denial of benefits ... does not automatically mean the
Commissioner’s decision to defend the ALJ’s decision was unreasonable,” Anderson v.
Commissioner of Social Sec., 1999 U.S. LEXIS 29996 at *13 (6th Cir. 1999); see
Howard, 376 F.3d at 554, because the ALJ failed to evaluate the medical source opinions
as required by Regulation, Ruling, and case law, as set forth above, the Government’s
defense of the ALJ’s decision lacked a reasonable basis in fact and law. This conclusion
holds even though the Government further argues that it was substantially justified in its
decision to support the ALJ’s credibility determinations. (Doc. # 22, PageID at 163-64).
Even if the Government was reasonable in its decision to support the ALJ’s credibility
determinations, this does not make reasonable its support – i.e., its unreasonable support –
for the ALJ’s evaluation of the medical source opinions. The Government, therefore, has
not met its burden of establishing that its support for the ALJ’s decision was substantially
justified or that an EAJA award to Plaintiff will be unjust. Cf. 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’s EAJA motion is well taken.

IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Motion for an Award of Attorney Fees Pursuant to the Equal
Justice Act (Doc. #21) is GRANTED; Plaintiff is entitled to an EAJA award
in the amount of $4,311.32 in attorney fees plus $350.00 in costs, equaling
a total EAJA award of $4,661.32; and

2.

The case remain terminated on the docket of this Court.

October 10, 2012
s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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).