Karns v. Commissioner of Social Security

Filing 20

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiff's Application For Attorney Fees Under Equal Access To Justice Act, 28 U.S.C. 2412(d) (Doc. 17 ) be GRANTED in the amount of $4,885.75. 2. The Clerk of Court be directed to enter Judgment in favor of Plaintiff and against the Commissioner of the Social Security Administration in the total amount of $4,885.75. 3. The case remains terminated on the docket of this Court. Objections to R&R due by 4/26/2012. Signed by Magistrate Judge Sharon L Ovington on 4/9/12. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
DOUGLAS A. KARNS,
Plaintiff,

:
:
:

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

Case No. 3:10cv00318
District Judge Thomas M. Rose
Magistrate Judge Sharon L. Ovington

:
:
:

REPORT AND RECOMMENDATIONS1

Plaintiff previously obtained a remand of this social security case for further
administrative proceedings. (Doc. #s 13, 14). The case is now before the Court upon
Plaintiff’s Application For Attorney Fees Pursuant To The Equal Access To Justice Act
(EAJA), 28 U.S.C. §2412 (Doc. #17), the Commissioner’s Response (Doc. #18), Plaintiff’s
Reply (Doc. #19), and the record as a whole. Plaintiff seeks a total award under the EAJA
of $5,190.00 in attorney fees and costs.
The EAJA requires the Government to pay a prevailing social security plaintiff’s
attorney fees “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);

1

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

see Pierce v. Underwood, 487 U.S. 552, 556, 108 S.Ct. 2451 (1988); see also Scarborough,
541 U.S. 401, 407, 124 S.Ct. 1856 (2004).
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, 541 U.S. at [415], 124 S.Ct. at 1866 (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.
In the present case, the Commissioner contends that the Government’s position was
substantially justified. The Court previously determined that the ALJ had properly reviewed
the opinions provided by Plaintiff’s treating physician, Dr. Dahdah, and that substantial
evidence supported the ALJ’s decision to discount Dr. Dahdah’s opinions. The
Commissioner notes, “[i]n the absence of a credible treating physician’s opinion, the ALJ
relied on Dr. Starr’s May 2007 opinion. However, the Magistrate Judge took issue with the
ALJ’s reliance on Dr. Starr’s opinion, explaining that it was outdated in light of Plaintiff’s
subsequent heart attack in April 2008.” (Doc. #18, PageID #608 (citations omitted)). The
Commissioner continues:
With respect to Plaintiff’s second assignment of error, the Magistrate
2

Judge agreed with the Commissioner that Sentence 6 remand for consideration
of new evidence was not warranted. The Magistrate Judge even noted that one
of the documents that Plaintiff submitted to the Appeals Council, a December
2008 Operative Report, “reinforces Dr. Dahdah’s earlier suggestions that
Plaintiff’s cardiac complaints may not be entirely credible.”
Thus, the Magistrate Judge recognized that there was a basis for the
ALJ’s conclusion that Plaintiff was not as limited as he claimed, and dismissed
Plaintiff’s second assignment of error entirely.
(Doc. #18, PageID at 17-18).
The Commissioner’s reliance on the ALJ’s handling of Dr. Starr’s opinion minimizes
the most salient problem in the ALJ’s decision: the ALJ credited
Dr. Starr’s May 2007 opinions even though his medical-record review pre-dated the heart
attack Plaintiff suffered in 2008. The Commissioner unreasonably overlooked this problem
in his support of the ALJ’s decision. The prior explanation (in the Report and
Recommendations) bears repeating and likewise establishes that the Commissioner’s present
search for substantial justification lacks merit:
Plaintiff’s accurate assertion that after May of 2007, he “was admitted
[to] or seen in the emergency department for chest pain on no less than eight
occasions” (Doc. #9 at 11) alone would not seem likely to have altered Dr.
Starr’s view of Plaintiff’s cardiac condition as stable; when Dr. Starr rendered
his opinion, Plaintiff already had a lengthy history of emergency room visits
for chest pain with no discernible cardiac genesis. (See Doc. #7-7, generally).
However, the fact that Plaintiff also suffered a heart attack in April 2008 (Doc.
#9 at 12; see Doc. #7-7 at 158) certainly does reflect on the continued viability
of Dr. Starr’s May 2007 assessment. In light of that subsequent myocardial
infarction, and contrary to the ALJ, this Court does not believe that Plaintiff’s
cardiac status at the time of the ALJ’s December 2008 decision fairly could be
characterized as having been “generally stable” since early 2008. (See Doc.
#7-2 at 16). Nor is the Court willing to assume that the April 2008 heart attack
would not have caused Dr. Starr to reassess his earlier opinion.
As with treating physician opinions, the opinions of non-treating
3

medical sources are subject to evaluation under the factors set forth in 20
C.F.R. §416.927(d), including not only the factors of supportability,
consistency, and specialization, see 20 C.F.R. § 416.927(f), but also “[o]ther
factors . . . which tend to support or contradict” a medical source opinion. 20
C.F.R. § 416.927(d)(6) (emphasis in original). Such “other factors” include
“the extent to which an acceptable medical source is familiar with the other
information in your case record.” Id.
In this case, the ALJ expressly acknowledged that “[t]he record
documents another stenting procedure in February 2008" that “was not
reviewed by Dr. Starr.” (Doc. #7-2 at 16). Despite that recognition, the ALJ
then continued to find only that the February 2008 procedure “may justify
limiting [Plaintiff] from heavy or very heavy exertion,” given that he “appears
to have been generally stable since early in 2008.” (Id.). Making such
adjustments to Dr. Starr’s RFC opinion instead of seeking a new opinion in
light of intervening relevant medical information treads perilously close to the
“substitution of judgment” decried in Plaintiff’s reply. (See Doc. #12 at 4). In
addition, the ALJ completely omitted any mention of evidence that Plaintiff
also had suffered another heart attack since the date of Dr. Starr’s assessment.
(See id.).
By failing to take that factor into consideration in evaluating Dr. Starr’s
opinion, the ALJ erred. Indeed, notes from Dr. Starr’s February 2007 review
confirm his concern for having up-to-date information on which to base his
assessments, given his stated unwillingness to rely on Plaintiff’s December 5,
2006 stress test results “as controlling” because Plaintiff “had cardiac
interve[nt]ion AFTER th[at] stress testing.” (Doc. #7-7 at 33) (emphasis in
original). If Dr. Starr, before assessing Plaintiff’s RFC, sought a reevaluation
of Plaintiff’s cardiac status three months after “cardiac interve[nt]ion” of a
more benign nature (see id.), the Court can only assume that Dr. Starr also
would consider reevaluation of Plaintiff’s cardiac status following a heart
attack to be germane – if not vital – as to his RFC opinion. Presumably Dr.
Starr would not have ascribed Plaintiff’s heart attack to a desire “for some
undefined secondary gain.” (See id. at 59). Absent consideration of Plaintiff’s
intervening myocardial infarction, Dr. Starr’s May 2007 assessment does not
constitute “substantial evidence” to support the ALJ’s December 2008 RFC
finding, and the ALJ’s reliance thereon thus constituted error.
(Doc. #13, PageID at 569-72).
The Commissioner’s contentions regarding substantial justification do not obviate the

4

readily discernible errors of law committed by the ALJ in regard to Dr. Starr’s outdated
opinions. For this reason, the Commissioner’s contentions do not demonstrate the existence
of a reasonable basis in law or fact for the Commissioner’s litigation position. 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.”). Plaintiff is therefore entitled to an EAJA
award.
Turning to the amount of the EAJA Plaintiff’s counsel seeks, the Commissioner
contends that the requested EAJA award is excessive because the attorney’s billing records
indicate that counsel spent time on purely secretarial or clerical tasks, even when a paralegal
performed those tasks. Although the Commissioner is generally correct, see Nadarajah v.
Holder, 569 F.3d 906, 921 (9th Cir. 2009), care must be taken to ensure that this category of
reduction applies only to purely secretarial or clerical tasks. Tasks that require at least some
legal knowledge to accomplish may be compensable under the EAJA even if the tasks also
involve clerical or secretarial work. Cf. Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989)
(“[P]urely clerical or secretarial tasks should not be billed at a paralegal rate, regardless of
who performs them.”); cf. also Richlin Sec. Service Co. v. Chertoff, 553 U.S. 571, 581
(2008) (EAJA awards of “attorney fees” may include compensation for paralegal services at

5

prevailing market rate for such services). In the present case, the Commissioner has shown
the need to reduce Plaintiff’s EAJA award due to the purely clerical tasks in entries listed in
its Memorandum in Opposition. See Doc. #18, PageID at 610. Those amount to a total
reduction to Plaintiff’s EAJA requested of $400.00
The Commissioner next argues that the requested EAJA award must be reduced
because Plaintiff’s counsel should have billed in one-tenth-hour increments instead of onequarter-hour increments. There is no blanket prohibition against quarter-hour billing entries;
instead, courts review the specifically challenged billing entries to determine whether they
were reasonable. See Kyser v. Apfel, 81 F.Supp.2d 645, 647 (W.D.Va. 2000); see also
Carlisle v. Barnhart, 2008 WL 420032 at *3 (S.D. Ohio 2008)(Rice, D.J.; Ovington, M.J.);
Sandoval v. Apfel, 86 F.Supp.2d 601, 615 (N.D. Tex. 2000). If a reduction is warranted, the
court need not reduce billing on an entry-by-entry basis because courts retain the “discretion
simply to apply a reasonable percentage reduction ‘as a practical means of trimming fat from
a fee application.’” Colegrove v. Barnhart, 435 F.Supp.2d 218, 221 (W.D.N.Y.
2006)(quoting in part Kirsch v. Fleet Street, Ltd., 148 F.3d 149, 173 (2nd Cir. 1998)).
The Commissioner argues, “It is appropriate for a court to reduce compensable hours
when Plaintiff’s counsel of recorded time in one-quarter hour increments for simple tasks,
‘which should have taken less time.’” (Doc. #18, PageID at 610) (quoting, in part, Haiges v.
Commissioner of Social Sec., 2008 WL 5412898 at *4 (S.D. Ohio, Dec. 28, 2008)(Rice, J.;
Merz, M.J.)). Yet, upon review of the challenged billing entries, see Doc. #18, PageID at
609-10, and Plaintiff’s counsel’s billing statement in its entirety, counsel has not billed one-

6

quarter-hour increments for tasks that took too long to perform. And, although it might have
taken less than fifteen minutes to complete some individual tasks, it is equally likely that
other tasks took longer than fifteen minutes. For example, time spent by Plaintiff’s attorney
drafting briefs, such as Plaintiff’s Statement of Errors and Plaintiff’s Reply, required a
detailed assessment of the administrative record. The amount of time that counsel spent on
this type of work was reasonable, particularly given the difficult burden placed on Plaintiff
to prove he suffers from a “disability” within the meaning of the Social Security Act. For
these reasons, the billing statement in this case is not subject to reduction on the ground that
it did not bill in one-tenth-hour increments.
The Commissioner next seeks a reduction of $77.50 in the EAJA award related to
work performed on December 15, 2010, related to a motion for extension of time. Plaintiff’s
counsel explains that the work seeking this extension was needed because many medical
records were missing from the transcript that Defendant had prepared. Counsel represents,
moreover, that she was working with defense counsel to supplement the record and that the
extension were not simply due to Plaintiff’s counsel’s busy schedule. In light of the
circumstances existing on December 10, 2010, especially the missing medical records from
the administrative transcript, the need for an extension of time is fairly attributable to the
Government. Consequently, the Commissioner is not entitled to a $77.50 reduction in the
EAJA award.
The Commissioner also seeks a reduction of $155.00 for billing entries on May 19,
2011 and July 12, 2011 related to Dr. Dennison’s disability letter because it “is not apparent

7

how Dr. Dennison’s 2011 disability letter and time spent in connection to Plaintiff’s
disability case before this Court.” (Doc. #18, PageID at 612). The Commissioner is correct.
The administrative record was docketed in December 2011 and Dr. Dennison’s later-dated
letter was not at issue. Although Plaintiff alternatively sought a Sentence Six remand in his
Statement of Errors, counsel’s work related to Dr. Dennison post-dated Plaintiff’s Statement
of Errors and Reply. In addition, Plaintiff’s case was remanded under Sentence Four of 42
U.S.C. §405(g) as stated in the Decision and Entry and the Report and Recommendations.
For these reasons, Plaintiff has not sufficiently connected the work performed in relation to
Dr. Dennison’s letter to the present case. A reduction of $155.00 is therefore warranted.
The Commissioner lastly seeks a $61.25 reduction in the EAJA award for time
Plaintiff’s counsel spent on tasks unrelated to Social Security disability proceedings.
Plaintiff’s counsel contends that the work concerned a letter to the Job and Family Services,
verifying that Plaintiff had applied for Social Security benefits. The letter was needed in
order to maintain interim benefits from Job and Family Services. Counsel’s explanation
does not connect the work performed in connection with benefits from Job and Family
Services with the main litigation issue in the present case: whether the administrative
decision denying Plaintiff’s application for social security benefits must be affirmed,
vacated, or reversed. Such work is therefore not fairly attributable to the Government in this
case.
Lastly, Plaintiff’s counsel seeks an additional award of $312.00 for 2.5 hours of
attorney work preparing a Reply in Support of her EAJA Motion. Given the length and high

8

quality of the Commissioner’s Memorandum in Opposition to the EAJA Motion, it was not
excessive for Plaintiff’s counsel to spend 2.5 hours drafting her Reply.
Accordingly, the amount of Plaintiff’s EAJA fees is calculated as follows:

–
–
–
+

$5,190.00
$400.00
$155.00
$61.25
$312.00
$4,885.75

(original requested amount in attorney fees and costs)

(attorney work on Reply)
(total fee award)

IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s Application For Attorney Fees Under Equal Access To Justice Act,
28 U.S.C.§2412(d) (Doc. #17) be GRANTED in the amount of $4,885.75;

2.

The Clerk of Court be directed to enter Judgment in favor of Plaintiff and
against the Commissioner of the Social Security Administration in the total
amount of $4,885.75; and

3.

The case remains terminated on the docket of this Court.

April 9, 2012
s/ Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

9

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 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).

10