Langston v. Colvin
Filing
40
ORDER DENYING Langston's motion for attorney fees 27 . (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 6/7/17. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DENISE LANGSTON,
Plaintiff
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant
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CIVIL ACTION NO. 1:15-CV-1117
(Chief Judge Conner)
ORDER
AND NOW, this 7th day of June, 2017, upon consideration of the motion
(Doc. 27) by plaintiff Denise Langston (“Langston”) for attorney fees incident to
her successful appeal of the decision of Nancy A. Berryhill, Acting Commissioner
of Social Security (“Commissioner”), to deny her claim for disability insurance
benefits, wherein the court agreed with Langston that the administrative law judge
(“ALJ”) committed reversible error by improperly discounting the medical source
opinions of Langston’s long-time treating physician in favor of the opinion of a nontreating source who did not examine Langston and who did not review the full
medical record, (Doc. 25 at 2-3 n.1), but agreed with the Commissioner that the ALJ
did not err in attributing limited weight to the lay opinion of Langston’s sister, (id.),
and that the ALJ does not have a mandatory duty to recontact a treating physician
in all instances before discounting his or her opinion, (id.), and wherein the court
1
Carolyn W. Colvin (“Colvin”) was Acting Commissioner of Social Security
when the instant action was filed against her in her official capacity. On January
23, 2017, Nancy A. Berryhill succeeded Colvin as Acting Commissioner. Pursuant
to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the
defendant in this action. See FED. R. CIV. P. 25(d).
concluded that notwithstanding its partial agreement with the Commissioner, the
ALJ’s improper attribution of “limited weight” to the medical source opinions of
Langston’s treating physician independently compelled remand to the ALJ for
additional record development, a new hearing, and appropriate evaluation of the
evidence, (id.), and the court observing that a plaintiff, like Langston, who obtains a
judgment under sentence four of 42 U.S.C. § 405(g), including remand for further
development of the record, is deemed the “prevailing party” for purposes of the
EAJA, Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); see also Kadelski v. Sullivan,
30 F.3d 399, 401 n.2 (3d Cir. 1994), and that, under the Equal Access to Justice Act
(“EAJA”), a court may award reasonable fees and other litigation expenses to a
prevailing party unless it concludes that the Commissioner’s position at the agency
level and on appeal “was substantially justified or that special circumstances make
an award unjust,” 28 U.S.C. § 2412(d)(1)(A), and the court further observing: first,
that substantial justification means “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 (1988) (internal quotation marks omitted), second, that it is the
Commissioner’s burden to establish substantial justification, Cruz v. Comm’r of Soc.
Sec., 630 F.3d 321, 324 (3d Cir. 2010) (citing Hanover Potato Prods., Inc. v. Shalala,
989 F.2d 123, 128 (3d Cir. 1993)), by showing that her position had a reasonable basis
in both law and fact, and that a reasonable connection between the two existed, see
id. (quoting Morgan v. Perry, 142 F.3d 670, 684 (3d Cir. 1998)), and third, that this
standard applies to both the Commissioner’s pre-litigation agency position in the
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final administrative decision and its litigation position on appeal, Williams v. Astrue,
600 F.3d 299, 302 (3d Cir. 2009), and turning to Langston’s instant motion, wherein
Langston asserts that the Commissioner’s position on appeal was not substantially
justified, (see Doc. 28 at 2), presumably because the Commissioner’s position both
at the agency level and on appeal was largely dependent on the ALJ’s rejection of a
treating physician opinion, which is generally accorded great weight, see Plummer
v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999), and because the court ultimately rejected
that argument on appeal, (see Docs. 22, 25), but the court observing that we cannot
presume a position lacked substantial justification merely because it did not prevail,
see Williams, 600 F.3d at 302 (quoting Morgan, 142 F.3d at 685), and finding that, on
the whole, the Commissioner articulated a substantial basis for her position—albeit
an unsuccessful one—throughout the agency action and on appeal, and that the
position did not “clearly offend[] established precedent,” Washington v. Heckler,
756 F.2d 959, 962 (3d Cir. 1985), particularly in light of Third Circuit jurisprudence
authorizing an ALJ to “choose whom to credit” when confronted with “the opinion
of a treating physician [which] conflicts with that of a non-treating, non-examining
physician,” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer, 186
F.3d at 429), so long as the ALJ does not reject the opinion of a treating physician
“for no reason or for the wrong reason,” id., and further authorizing an ALJ to
“afford a treating physician’s opinion more or less weight depending upon the
extent to which supporting explanations are provided,” Plummer, 186 F.3d at
429 (citing Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985)), and the court
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determining: first, that the mere fact that the Commissioner’s argument was
unsuccessful herein does not render her position unreasonable,2 and second, that
the Commissioner’s success on two additional issues raised before the undersigned
reflects substantial justification on the whole, (Doc. 25 at 3 n.1), and the court thus
concluding that the Commissioner’s position was substantially justified, precluding
an award of fees and costs, see 28 U.S.C. § 2412(d)(1)(A), it is hereby ORDERED that
Langston’s motion (Doc. 27) for attorney fees is DENIED.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania
2
The Third Circuit has not yet upheld (in a precedential opinion or
otherwise) the exact position defended by the Commissioner here—to wit: an
agency decision to reject a treating source opinion in favor of of a single, nontreating, non-examining state agency consultative opinion rendered without the
benefit of a full medical record. The Third Circuit has held, however, that an ALJ
may rely on a dated state agency consultative opinion to support the ALJ’s decision,
observing that “some” time lapse between agency review and the ALJ’s decision is
inevitable. Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). On the
merits, Chandler is distinguishable: the ALJ there did not discount a treating source
medical opinion in favor of the dated agency opinion. Id. at 361-62. Indeed, there
was no treating source opinion before the ALJ to discount; the non-treating, nonexamining state agency consultant opinion was the only medical source opinion
before the ALJ. See generally id. Notwithstanding this factual distinction, the
Commissioner was not unjustified in synthesizing Chandler with the balance of
Third Circuit precedent concerning medical source attribution to advance its
agency and appellate position.
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