CLARK v. ASTRUE

Filing 20

MEMORANDUM AND OPINION. SIGNED BY HONORABLE J. CURTIS JOYNER ON 6/15/11. 6/16/11 ENTERED AND COPIES E-MAILED.(fdc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TANYA Y. CLARK

: CIVIL ACTION
:
vs.
:
: NO. 10-CV-1240
MICHAEL J. ASTRUE,
:
Commissioner of Social Security :
MEMORANDUM AND ORDER

JOYNER, C.J.

June 15, 2011

This civil action is before the Court on Motion of the
Plaintiff, Tanya Clark, for Attorney Fees Under the Equal Access
to Justice Act, 28 U.S.C. §2412 (“EAJA”).

For the reasons set

forth below, the Motion shall be denied.
Background
Plaintiff commenced this action in March, 2010 pursuant to
Chapter 7 of the Social Security Act, 42 U.S.C. §405(g)(“Act”),
to obtain judicial review of the final decision of the
Commissioner of Social Security to deny her request for
Supplemental Security Income (“SSI”) benefits pursuant to Title
XVI of the Act.1

Specifically, Plaintiff asserted the following

errors on the part of the Commissioner and Administrative Law
Judge who oversaw the hearing on her benefits application:

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Plaintiff, who is a 46 year-old woman with an eleventh-grade
education, claimed disability due to congestive heart failure, hypothyroidism,
lupus, obesity, end stage liver disease, depression and anxiety.

(1) failing to find that the severity of her chronic heart
failure met the requirements of section 4.02 of the listing
of impairments;
(2) completely rejecting the opinion of her treating
cardiologist;
(3) improperly relying on testimony by the vocational expert
which is not consistent with the Dictionary of Occupational
Titles (“DOT”); and
(4) failing to properly evaluate and weigh her testimony and
other subjective statements.
The matter was referred to U.S. Magistrate Judge Linda K.
Caracappa for review and preparation of a Report and
Recommendation.

Judge Caracappa issued her Report and

Recommendation on January 31, 2011, finding first, that the
record supported and the ALJ sufficiently explained why
Plaintiff’s chronic heart failure did not meet the severity
criteria of section 4.01.

( R & R, p. 21).

Second, Judge

Caracappa concluded that “the ALJ was justified in not affording
controlling weight to Dr. Hankins’ opinions, despite that she is
plaintiff’s treating cardiologist,” and that “substantial
evidence exists for the ALJ’s adverse credibility finding.”
Thus, she was “unpersuaded by plaintiff’s argument that the ALJ
did not properly follow pertinent regulations in evaluating
plaintiff’s subjective complaints.”

( R & R, pp. 21, 25).

Noting that while it is true that “the ALJ is required to give
great weight to a plaintiff’s testimony of subjective
complaints,” Judge Caracappa likewise found that an “ALJ has the
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right, as the fact finder, to reject partially, or even entirely,
such subjective complaints if they are found not credible.”
R, p. 24).

(R &

And, finding that substantial evidence existed to

justify an adverse credibility assessment, Judge Caracappa found
no basis on which to reverse or remand the ALJ on the fourth
assignment of error. ( R & R, p. 25).
As to the third assignment of error, however, Judge
Caracappa noted that the ALJ accepted the vocational expert’s
testimony that Ms. Clark could “perform the representative
occupations of telephone information clerk and charge account
clerk, both occupations requiring a reasoning level of 3
according to the DOT.”

This testimony was:

“inconsistent with the ALJ’s determination that plaintiff be
limited to simple, routine tasks. Because the ALJ did not
inquire of the VE how plaintiff can perform either of these
jobs, which have reasoning levels of 3, while the ALJ
restricted plaintiff to simple, routine tasks, a conflict
exists. The ALJ did not discharge his duty, pursuant to
SSR-004p, to inquire about the conflict on the record and to
explain in his decision how the discrepancy was resolved.
... Further, because our review of the record does not
reflect substantial evidence that plaintiff can perform jobs
with a reasoning level of 3, a remand is appropriate so that
the ALJ can explain these inconsistencies.”
( R & R, p. 23, internal citations omitted).
Thus, Judge Caracappa recommended that the matter be
remanded to the Commissioner of Social Security for further
proceedings to rectify this omission on the part of the ALJ.

No

objections were filed to the Report and Recommendation and it was
approved by this Court in an Order entered on March 4, 2011.
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On

May 23, 2011, Plaintiff’s attorney filed the Motion for
Attorney’s Fees with which we are here concerned.
Discussion
As noted, the Plaintiff moves to recover counsel fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412.
Subsection (d)(1)(A) of that statute reads as follows:
Except as otherwise specifically provided by statute, a
court shall award to a prevailing party other than the
United States, fees and other expenses, in addition to any
costs awarded pursuant to subsection (a), incurred by that
party in any civil action (other than cases sounding in
tort), including proceedings for judicial review of agency
action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds
that the position of the United States was substantially
justified or that special circumstances make an award
unjust.
The “specific purpose of the EAJA is to eliminate for the
average person the financial disincentive to challenge
unreasonable governmental actions.”

Commissioner v. Jean, 496

U.S. 154, 163, 110 S. Ct. 2316, 2321, 110 L. Ed.2d 134 (1990).
The EAJA permits awards of attorney’s fees only to the extent
that they are reasonable.

Butterfield v. Astrue, 2011 U.S. Dist.

LEXIS 48586 at *8 (E.D. Pa. May 5, 2011)(citing Citizens Council
of Delaware County v. Brinegar, 741 F.2d 584, 595-95 (3d Cir.
1984)).

“The EAJA is not a ‘loser pays’ statute; rather courts

should limit their inquiries to whether the government’s position
was reasonable under the facts and the law.”

Bryan v. Astrue,

2011 U.S. Dist. LEXIS 51878 at *5 (M.D. Pa. May 16, 2011)(quoting

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Morgan v. Perry, 142 F.3d 670, 685 (3d Cir. 1998).

To defeat a

prevailing party’s application for fees, the government must
establish that there is substantial justification for its
position by demonstrating “(1) a reasonable basis in truth for
the facts alleged; (2) a reasonable basis in law for the theory
it propounded; and (3) a reasonable connection between the facts
alleged and the legal theory advanced.”

Id., quoting Morgan, 142

F.3d at 684.
As used in the EAJA, the term “substantially justified” does
not mean “justified to a high degree,” “but rather ‘justified in
substance or in the main,’ that is, justified to a degree that
could satisfy a reasonable person.”

Pierce v. Underwood, 487

U.S. 552, 565, 108 S. Ct. 2541, 2550, 101 L. Ed.2d 490 (1988).
“Substantial justification represents a middle ground between
automatically awarding attorney’s fees and awarding attorney’s
[fees] only when the government’s position was frivolous.”
Butterfield, supra., at *10 (quoting Magwood v. Astrue, 594 F.
Supp. 2d 557, 559 (E.D. Pa. 2009).

“The government’s position

consists of both its prelitigation agency position and its
litigation position.”
Cir. 2009).

Williams v. Astrue, 600 F.3d 299, 302 (3d

In determining “whether the government’s position in

a case is substantially justified,” the courts must “look beyond
the issue on which the petitioner prevailed to determine, from
the totality of the circumstances, whether the government acted

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reasonably in causing the litigation or in taking a stance during
the litigation.”

Id.

Rarely will a party’s success on a single

claim “be dispositive of whether the government’s overall
position was substantially justified.”

Id. (quoting Stewart v.

Astrue, 561 F.3d 679, 683 (7th Cir. 2009).

Indeed, “[a] position

can be justified even though it is not correct, and can be
substantially (i.e. for the most part) justified if a reasonable
person could think it is correct. ...” Butterfield, 2011 U.S.
Dist. LEXIS at *10 (quoting Pierce, 487 U.S. at 566 n.2).

Again,

it is the government which has the burden to establish
substantial justification.

Magwood, 594 F. Supp. 2d at 560

(citing Stokes v. Bowen, 811 F.2d 814, 816 (3d Cir. 1987) and
Washington v. Heckler, 756 F.2d 959, 961 (3d Cir. 1985).
Here, the Magistrate Judge recommended a remand to the ALJ
for one very limited purpose – to resolve the apparent conflict
between the Vocational Expert’s opinion that Plaintiff can
perform such representative jobs as telephone information clerk
and charge account clerk, both of which have a reasoning level of
3, and the ALJ’s restriction of Plaintiff to simple, routine
tasks.

In all other respects, Plaintiff’s Complaint seeking

judicial review was denied.

Neither party filed objections to

the Report and Recommendation and this Court subsequently
approved and adopted it without any changes and in its entirety.
No appeal was taken from this action either.

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Given that the

matter was remanded to the ALJ for reconsideration of only one
issue out of four and this decision was not challenged, we easily
conclude that the Commissioner’s position throughout the
proceedings in this matter was substantially justified and based
on sound legal and factual grounds.

Accordingly, we deem denial

of the within petition for attorney’s fees to be appropriate and
in keeping with the letter and spirit of the EAJA, most
particularly §2412(d)(1)(A).
For these reasons, Plaintiff’s motion is denied via the
attached order.

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