Striplin v. Colvin

Filing 32

ORDER (memorandum filed previously as separate docket entry), GRANTING 26 MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act filed by Robert A. Striplin.Signed by Honorable James M. Munley on 7/10/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ROBERT A. STRIPLIN,
Plaintiff

:
No. 3:15cv330
:
:
(Judge Munley)
v.
:
:
(Magistrate Judge Cohn)
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NANCY BERRYHILL,
:
Acting Commissioner
:
of Social Security,
:
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Plaintiff Robert A. Striplin’s motion for
attorney’s fees pursuant to the Equal Access to Justice Act. The defendant
opposes the motion. The parties have briefed their respective positions, and the
motion is ripe for disposition.

When plaintiff filed this action, Carolyn W. Colvin was the Commissioner of
Social Security. Accordingly, plaintiff named her as the defendant in her official
capacity. Since then, however, Colvin left her position as Commissioner. Nancy
A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. See Official Social Security Website, http://blog.ssa.gov/meet-our-newacting-commissioner/ (last accessed July 5, 2017). Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W.
Colvin as the defendant in this suit. FED. R. CIV. P. 25(d) (“An action does not
abate when a public officer who is a party in an official capacity dies, resigns, or
otherwise ceases to hold office while the action is pending. The officer’s
successor is automatically substituted as a party.”)
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Background
On January 12, 2009, plaintiff filed protective applications for disability
insurance benefits and Social Security Income due to epilepsy. (Doc. 11, Admin.
Record (hereinafter “R.”) at 243-55).
Plaintiff’s file was reviewed by the Social Security Administration
(hereinafter “SSA”) as part of an administrative proceeding. (R. at 12). On April
16, 2012, the SSA determined plaintiff was not disabled and denied benefits.
Consequently, plaintiff filed a request for a hearing before the administrative law
judge (hereinafter “ALJ”). The ALJ held a hearing on May 10, 2010. The ALJ
conducted a five-step sequential analysis to reach her conclusion: (1) whether
the claimant is currently engaged in substantial activity; (2) if not, whether the
claimant has a severe impairment or a combination of impairments that are
severe2; (3) whether the medical evidence of the claimant’s impairment meets

A “severe impairment” significantly limits a claimant’s physical or mental ability
to perform basic work activities. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Basic
physical work activities include the ability to walk, stand, sit, lift, carry, push, pull,
reach, climb, crawl, and handle. 20 C.F.R. §§ 404.1545(b) and 416.921(b). An
individual’s basic mental or non-exertional abilities include the ability to
understand, carry out and remember simple instructions, and respond
appropriately to supervision, coworkers and work pressures. 20 C.F.R. §§
1545(c) and 416.921(b).
The determination of whether a claimant has any severe impairment that
has lasted or is expected to last for a continuous period of at least twelve (12)
months, at step two of the sequential evaluation process, is a threshold test. 20
C.F.R. §§ 404.1509, 404.1520(c) & 416.920(c). If a claimant does not have any
severe impairment or combination of impairments which significantly limits her
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the criteria of a “listed impairment”; (4) whether the claimant’s impairments
prevent him from performing his past relevant work; and (5) if the claimant is
incapable of performing his past relevant work, whether he can perform a job that
exists in the economy. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
At step two in the five-step sequential analysis, the ALJ concluded that
plaintiff suffered from disc herniations at both L4-5 and L5-S1. According to the
ALJ the herniations were “mild” and did not meet the “severe” threshold required
to survive step two. The ALJ interpreted the opinion of Adel B. Mikhaiel, M.D., to
reach her conclusion that the L5-S1 herniation was mild. (R. at 445). However,
the ALJ determined that plaintiff’s other conditions were “severe”, so the five-step
sequential analysis continued. A Vocational Expert (hereinafter “VE”), employed
by the ALJ, determined that jobs exist in the national economy that plaintiff could
perform with his impairments, thus plaintiff’s case failed to meet step five of the
five-step process.

physical or mental abilities to perform basic work activities that has lasted or is
expected to last for a continuous period of at least twelve (12) months, the
claimant is “not disabled” and the evaluation process ends at step two. 20 C.F.R.
§§ 404.1509, 404.1520(c) & 416.920(c).
If a claimant has any severe impairments, the evaluation process
continues. 20 C.F.R. §§ 404.1520(d)-(g) and 416.920(d)-(g). Furthermore, all
medically determinable impairments, severe and non-severe, are considered in
the subsequent steps of the sequential evaluation process. 20 C.F.R. §§
404.1523, 404.1545(a)(2), 416.923 & 416.945(a)(2).
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Because plaintiff’s claim failed to satisfy step five of the five-step analysis,
the ALJ denied plaintiff’s request for benefits on June 23, 2010. (R. at 137-79,
183-201). Plaintiff filed an appeal to the Appeals Council which remanded the
case back to the ALJ for a lack of substantial evidence. (R. at 202-07). The
second hearing was held on May 29, 2013. (R. at 14-15). The ALJ again denied
plaintiff’s claim on July 16, 2013. (Id.) Plaintiff requested a review by the Appeals
Council, but the Appeals Council denied the request on December 10, 2014. (R.
at 1-5). As a result, the Commissioner of Social Security adopted the ALJ’s
finding that plaintiff was not disabled as her final decision.
On February 18, 2015 plaintiff appealed to this court pursuant to 24 U.S.C.
§ 405(g). The appeal was assigned to Magistrate Judge Gerald B. Cohn. On
March 31, 2016, Magistrate Judge Cohn filed a report and recommendation
(hereinafter “R&R”) recommending that we uphold the Commissioner’s decision.
(Doc. 20, R&R at 50). Specifically, the Magistrate Judge indicated plaintiff
mischaracterized the ALJ’s report when he argued the ALJ’s decision did not
consider any of diagnoses or observations made by his neurologists. (Doc. 20,
R&R at 39). Instead, the R&R suggested the ALJ properly weighed and
evaluated all evidence to reach a conclusion supported by substantial evidence.
(Doc. 20, R&R at 50). Further, the Magistrate Judge decided even if the ALJ did

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err, the error was harmless because the VE identified jobs in the national
economy plaintiff could perform. (Doc. 20, R&R at 43-44).
The Court did not adopt the R&R, instead we remanded the case and we
concluded the ALJ erred as a matter of law when she decided plaintiff’s lumbar
spine impairment did not satisfy the de minimis threshold of severity required to
meet step two of the five-step process. (Doc. 23, Memo. of Oct. 7, 2016 at 14).
Accordingly, on December 28, 2016 plaintiff filed a motion for attorney’s
fees pursuant to the Equal Access to Justice Act (hereinafter “EAJA”) 28 U.S.C.
§ 2412. Additionally, plaintiff seeks attorney’s fees for litigating this EAJA claim.
Plaintiff seeks a total of $7,556.25.3
Jurisdiction
We have federal question jurisdiction over this Social Security
Administration appeal. See 42 U.S.C. § 1383(c)(3). (“The final determination of
the Commissioner of Social Security after a hearing under paragraph (1) shall be
subject to judicial review as provided in section 405(g) of this title to the same
extent as the Commissioner’s final determinations under section 405 of this
title.”); see also 42 U.S.C. § 405(g)(“any individual, after any final decision of the
The statutory maximum rate for attorney’s fees is $125 per hour. 28 U.S.C. §
2412(d)(2)(A). Plaintiff requested attorney’s fees over the statutory maximum
$125 per hour, but this was authorized because the statute allows the attorney to
adjust the rate for an increased cost of living. 28 U.S.C. § 2412(d)(2)(A).
Defendant does not object to the amount requested by plaintiff.
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Commissioner of Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such a decision
by a civil action commenced within sixty days after the mailing to him of notice of
such decision or within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social Security may
allow. Such action shall be brought in the district court of the United States for
the judicial district in which the plaintiff resides or has his principle place of
business…”).
Legal Standard
The issue before the Court is whether plaintiff is entitled to attorney’s fees
pursuant to the EAJA. The EAJA authorizes the court to award attorney’s fees to
the prevailing party, unless the court finds the position of the United States was
substantially justified. 28 U.S.C. § 2412(d)(1)(A). Here, it is uncontested that
plaintiff is the prevailing party. 28 U.S.C. § 2412(d)(1)(B). Thus, the issue is
whether the United States’ position was substantially justified.
The Supreme Court defined the term “substantially justified” as “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, 565-66 (1988). It must
have a reasonable basis in law and fact. Id. at 566. The Third Circuit explained
that “a court cannot assume that the government’s position was not substantially
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justified simply because the government lost on the merits.” Morgan v. Perry, 142
F.3d 670, 685 (3d Cir. 1998). Instead, the court must determine whether a
reasonable basis in law and fact supported the government’s position. Id.
The burden of proving a substantial justification is on the government.
Dougherty v. Lehman, 711 F.2d 555, 561 (3d Cir. 1983). The burden is strong
and is satisfied when the Commissioner shows: “(1) a reasonable basis in truth
for the facts alleged; (2) a reasonable basis in law for the theory she propounds;
and (3) a reasonable connection between the facts alleged and the legal theory
advanced.” Washington v. Heckler, 756 F.2d 959, 961 (3d Cir. 1985). Further,
the government must establish a substantial justification on every issue, both
during the administrative proceedings and during litigation in the court. Hanover
Potato Prod., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993).
Not only must the government demonstrate a substantial justification for its
position at litigation, but it also must show a substantial justification for the
administrative decisions prior to litigation. Morgan, 142 F.3d at 684.
Discussion
Plaintiff claims defendant failed to demonstrate a “substantial justification”
for its position pre-litigation and post-litigation, and we agree for the following
reasons. First, defendant relied on a mistake of fact that the ALJ made during her
assessment. (R. at 445). The ALJ characterized the herniated disc at both L4-5
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and L5-S1 as “mild”. (R. at 26). Additionally, the ALJ noted that there is no record
of ongoing treatment for plaintiff’s back. (R. at 26). The ALJ reached her
conclusion by analyzing the objective medical evidence along with plaintiff’s
subjective complaints. (R. at 25).
A report by Adel B. Mikhaiel, M.D., characterized the herniation at L5-S1 as
a “disc herniation with broad-based disc bulge causing impingement on the dural
sac”. (R. at 445). Dr. Mikhaiel concluded the herniation at L4-5 was a “mild disc
herniation with broad-based disc bulge…” (R. at 445). Yet, the ALJ concluded
that both the L4-5 and L5-S1 were both “very mild” disc herniations. (R. at 26).
Because the ALJ concluded the L4-5 and L5-S1 disc herniations were “very
mild”, she determined both impairments failed to satisfy the de minimis threshold
of severity necessary to surpass step two of the sequential analysis.
We agree with plaintiff that defendant ignored case law that requires the
impairment merely be greater than a slight abnormality to satisfy the de minimis
severity threshold. McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir.
2004) (citing Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546-47 (3d Cir. 2003)
(“If the evidence presented by the claimant presents more than a ‘slight
abnormality,’ the step-two requirement of ‘severe’ is met, and the sequential
evaluation process should continue.”)). “The two step inquiry is a de minimis
screening device to dispose of groundless claims.” Newell, 347 F.3d at 546.
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Given the low de minimis threshold and the medical evidence supporting a
“severe” impairment at L5-S1, the defendant was not substantially justified in
reaching the conclusion that plaintiff’s L5-S1 disc herniation was not severe.
Because the ALJ decided the L5-S1 impairment was not severe, the
subsequent Residual Functional Capacity4 (hereinafter “RFC”) analysis was
incomplete. The functional limitation of the L5-S1 disc herniation was not
considered during the RFC, thus the sequential analysis that took place after
step two was tainted. (R. at 21). The ALJ’s failure to consider the L5-S1 disc
herniation in the RFC analysis impacted the VE’s testimony as to which jobs
plaintiff could perform. Because the VE determined jobs existed in the economy
that plaintiff could perform, plaintiff’s claim failed at step five in the sequential
analysis.
Defendant relies on Rutherford v. Barnhart for the proposition that the error
made by the ALJ was harmless because the VE identified jobs that plaintiff could
perform even if the herniation at L5-S1 was characterized as severe. Rutherford
v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005). This case is distinguishable
because in Rutherford, plaintiff’s obesity was indirectly considered by the ALJ
when the ALJ reviewed medical reports by doctors who factored in plaintiff’s

At step four of the five-step sequential analysis, the ALJ is required to assess
the claimant’s RFC to determine what the claimant can do in the workforce
despite his limitations. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1).
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obesity. Id. Here, the ALJ never considered, directly or indirectly, the severity of
plaintiff’s L5-S1 herniation during the RFC analysis. (R. at 21). Because the VE
concluded the plaintiff could perform some jobs in the current economy without
considering the functional limitation of the L5-S1 disc herniation the error was not
harmless.
Defendant cites two non-binding cases to assert the Commissioner’s
position was substantially justified when conflicting evidence appears on the
record.5 We find these non-binding cases unpersuasive. We are presented with
more than conflicting evidence; defendant erroneously mischaracterized the L5S1 herniation as “mild”. (R. at 26). Assuming arguendo that defendant did not
make that erroneous determination, the conflicting evidence, that plaintiff denied
back pain and his motor skills were assessed as 5/5, is not strong enough to
outweigh the severity of the L5-S1 herniation. (R. at 20). Accordingly, defendant’s
position is not substantially justified and the award of attorney’s fees is
appropriate.
Moreover, plaintiff contends the ALJ did not properly weigh the evidence
offered by psychologist Dustin Barabas. The ALJ characterized his report as
indicating only a “slight to moderate impact on the claimant”. (R. at 194). The ALJ
Greyer v. Sullivan, No. 91-3705, 1992 WL 373028, at *2 (N.D. Ill. Dec. 11, 1992)
(concluding if there is evidence to support two positions, the government is
entitled to choose between conflicting views of the permissible evidence);
Jackson v. Charter, 94 F.3d 274, 279-80 (7th Cir. 1996).
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noted Barabas’s opinion deserved less weight because he was not a treating
doctor (R. at 27). Yet, plaintiff proffered evidence that Barabas said “the claimant
appears unable to sustain attention to perform simple tasks” and “the claimant
appears unable to tolerate day-to-day work pressures such as production
demands and schedules.” (R. at 640). After relying on the ALJ’s analysis of
Barabas’ report to make her decision, the Commissioner later tried to distinguish
Barabas’ determinations as “extreme”. (Doc. 15, Def. Br. at 20). However, this
reasoning was not present in the ALJ’s decision because the Commissioner did
not offer this reasoning until litigation commenced. (R. at 27). We agree with
plaintiff that this reasoning is not relevant because a substantial justification must
exist at the time of litigation as well as at the time of the administrative hearing.
Hanover 989 F.2d at 128; Morgan, 142 F.3d at 684.
The RFC analysis must include both objective medical evidence and
subjective symptoms. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(1). When
considering subjective symptoms, the ALJ must perform a separate two step
analysis to analyze the severity of the subjective symptoms. § 404.1529(b-c).6
Dr. Barabas’ conclusions based on the claimant’s subjective symptoms should

First, the Commissioner must determine if the claimant’s symptoms are
medically determinable impairments. Next, the Commissioner must consider the
claimant’s testimony and objective medical evidence to determine the intensity
and persistence of the impairments and how those impairments will affect
claimant’s ability to work. McClease, 2009 WL 3497775, at *5.
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have been considered with the remaining objective medical evidence to reach a
conclusion. The Commissioner erred when she decided to give less weight to Dr.
Barabas’ opinion because that decision ultimately influenced the VE’s
determination that plaintiff could perform jobs in the economy. (R. at 27).
Lastly, defendant argues that if attorney’s fees are awarded, they should be
awarded directly to the plaintiff, not to plaintiff’s counsel. We agree. In Astrue, the
Supreme Court held fees awarded pursuant to section 2412(d) must be awarded
to the plaintiff, thus it “is subject to a Government offset to satisfy a pre-existing
debt that the litigant owes the United States.” Astrue v. Ratliff, 560 U.S. 586, 589
(2010). Section 2412(d)(1)(A) plainly states “shall award fees a prevailing
party…” In Astrue, the court interpreted the term “prevailing party” to mean
“prevailing litigant”. Astrue 560 U.S. at 591. Here, plaintiff is the prevailing party,
thus he will receive the award for attorney’s fees. Consequently, the government
will have the authority to use the award to satisfy any qualifying pre-existing
debts that plaintiff owes.
CONCLUSION
For the above reasons, plaintiff’s motion for attorney’s fees will be granted.
An appropriate order follows.

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Date: July 10, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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