WILLIAMS v. COMMISSIONER OF SOCIAL SECURITY
Filing
25
ORDER granting in part 19 Motion for Attorney Fees Under the Equal Access to Justice Act, to the extent that plaintiff is awarded attorney fees in the amount of $4,200.00, to be paid in the manner set forth in the Order. Signed by Judge Alan N. Bloch on 11/21/2011. (kmw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TED M. WILLIAMS,
Plaintiff,
vs.
Civil Action No. 10-1263
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
o
R D E R
AND NOW, this 21st day of November, 2011, upon consideration
of "Plaintiff's Counsel's Petition for Attorney Fees under the
Equal Access to Justice Act"
(Document No. 19) filed in the above-
captioned matter on September 9, 2011, and upon further
consideration of Defendant's Response thereto (Document No. 20)
and Plaintiff's Counsel's Reply to Defendant's Response (Document
No. 24)
I
IT IS HEREBY ORDERED that said Motion is GRANTED in part, to
the extent that Plaintiff, Ted M. Williams,
is awarded attorney
fees under the EAJA in the amount of $4,200.00.
These attorney
fees will be paid directly to plaintiff, Ted M. Williams, and sent
to the business address of Plaintiff's counsel.
Full or partial
remittance of the awarded attorney fees will be contingent upon a
determination by the Government that Plaintiff owes no qualifying,
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pre-existing debt(s) to the Government.
If such a debt(s) exists,
the Government will reduce the awarded attorney fees in this Order
to the extent necessary to satisfy such debt(s).
Plaintiff's counsel seeks fees under the Equal Access to
Justice Act, 28
§
U.S.C. 2412(d)
("EAJA") in connection with the
above-captioned Social Security matter litigated before this
Court.
She represented Plaintiff in this matter, an appeal from
the determination of the Commissioner of Social Security
("Commissioner") denying Plaintiff's claim for supplemental
security income benefits.
A Report and Recommendation of the
United States Magistrate Judge (Document No. 15) was issued,
recommending that the Commissioner's decision be affirmed.
However, this Court did not adopt the ultimate conclusions of the
Report, but rather, pursuant to a August 16, 2011 Order, found
that substantial evidence did not support the decision of the
Administrative Law Judge ("ALJ") in this case.
Accordingly, the
case was remanded to the Commissioner for further evaluation under
sentence four of 42 U.S.C.
§
405(g) in light of the Court's Order.
Counsel now seeks fees in the amount of $5,775.00 based on 33
hours of work spent on this case before this Court and the
Magistrate Judge.
Defendant opposes counsel's request, arguing
that its position in opposing Plaintiff's appeal of the
Commissioner's denial of benefits was substantially justified.
the alternative, Defendant argues that, even if fees under the
2
In
EAJA are warranted, the fees sought by Plaintiff's counsel are
excessive.
The Court disagrees with Defendant's first argument
and finds that its position was not substantially justified, but
agrees that the amount of fees sought is excessive.
Pursuant to the EAJA,
"a court shall award to a prevailing
party ... fees and other expenses ... incurred by that party ... unless
the court finds that the position of the United States was
substantially justified or that special conditions make an award
unjust."
28 U.S.C. § 2412(d) (1) (A).
This means that fees can be
ordered under the EAJA unless the government's position "has a
reasonable basis in both law and fact."
F.3d 299, 302 (3d Cir. 2009)
Williams v. Astrue, 600
(quoting Hanover Potato Prods., Inc.
v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993)).
burden to establish that its position:
in truth for the facts alleged;
It is Defendant's
(1) had a reasonable basis
(2) had a reasonable basis in law
for the theory propounded; and (3) had a reasonable connection
between the facts alleged and the legal theory advanced.
However,
See id.
"a court cannot assume that the government's
position was not substantially justified simply because the
government lost on the merits."
F.3d 670, 685 (3d Cir. 1998)).
Id.
(quoting Morgan v. Perry, 142
Indeed,
"a party's success on a
single claim will rarely be dispositive of whether the
government's overall position was substantially justified."
Id.
The Court must look at the totality of the circumstances in making
3
its decision.
See id.
(citing Roanoke River Basin Assoc. v.
Hudson, 991 F.2d 132, 139 (4 th Cir. 1993)).
Here, Defendant argues that it was justified in opposing
Plaintiff's appeal because of the unsettled nature of the law
regarding the effect of Global Assessment of Functioning ("GAF")
scores on the determination of disability.
To be sure, this Court
acknowledges that GAF scores are a grey area of the law regarding
disability.
GAF scores do not directly correlate to a
determination of whether an individual is or is not disabled under
the Act:
The GAF scale, which is described in the DSM-III-R (and the
DSM-IV), is the scale used in the multiaxial evaluation
system endorsed by the American Psychiatric Association. It
does not have a direct correlation to the severity
requirements in our mental disorders listings.
65 Fed. Reg. 50746, 50764-65.
While under certain circumstances a
GAF score can be considered evidence of disability, standing
alone, a GAF score does not evidence an impairment seriously
interfering with a claimant's ability to work.
See Lopez v.
Barnhart, 78 Fed. Appx. 675, 678 (10 th Cir. 2003).
GAF scores may
indicate problems that do not necessarily relate to the ability to
hold a job.
See id.;
Zac~ary
v. Barnhart, 94 Fed. Appx. 817, 819
(10 th Cir. 2004); Wilkins v. Barnhart, 69 Fed. Appx. 775, 780 (7 th
Cir. 2003)
i
v. Commissioner of Soc. Sec., 276 F.3d 235, 241
(6 th Cir. 2002); Power v. Astrue, 2009 WL 578478, at *8 (W.D. Pa.
Mar. 5, 2009).
Nonetheless, a GAF score is evidence that an ALJ
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should consider in determining a claimant's impairments and
limitations in setting forth the claimant's residual functional
capacity ("RFC") and in fashioning a hypothetical question to the
vocational expert ("VEil).
See Irizarry v. Barnhart, 233 Fed.
Appx. 189 (3d Cir. 2007).
However, Defendant's argument focuses too much on whether it
propounded a viable legal theory and not enough on the application
of law to fact.
It is important to understand how the issue was
raised in the context of this case.
Plaintiff, in his briefs in
support of his summary judgment motion, argued that the failure to
discuss the GAF scores assigned by Omar Bhutta, M.D., his treating
psychologist, in light of the ALJ's decision to reject Dr.
Bhutta's opinions regarding his work limitations, required the
case to be remanded for further consideration.
As this Court
explained in its August 16 Order, the ALJ could not rely on Dr.
Bhutta's daily reports in rejecting his opinion, yet fail to
discuss GAF scores contained in those reports that mayor may not
support such reliance.
This is not a case, therefore, where a claimant was arguing
that a low GAF score demonstrated disability.
Rather, Plaintiff's
argument was that GAF scores contained in reports used to reject a
treating physician's opinion had to be discussed, and that the
case had to be remanded for the ALJ to provide such discussion.
While Defendant is correct that the law regarding the impact of
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GAF scores is a bit ambiguous in the abstract, compare Irizarry,
233 Fed. Appx. at 192 with Gilroy v. Astrue, 351 Fed. Appx. 714
(3d Cir. 2009), applying the facts of this case demonstrates that
the real issue here is not GAF scores in particular, but rather
the failure to discuss relevant medical evidence generally.
It is
black letter law that where there is conflicting evidence in the
record, the ALJ must explain which evidence he accepts and rejects
and the reasons for his determination.
See Cruz v. Commissioner
of Soc. Sec., 244 Fed. Appx. 475, 479 (3d Cir. 2007)
(citing
Hargenrader v. Califano, 575 F.2d 434, 437 (3d Cir. 1978)).
See
also Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001).
Therefore, regardless of whether the GAF scores themselves
supported a claim of disability, the failure to discuss them in
the context of this case constituted a failure to properly
reconcile conflicting medical evidence.
The cases upon which Defendant relies demonstrate this
difference.
In Gilroy, for instance, remand was not required
where the ALJ did not reference GAF scores assigned by the
treating psychiatrist where the psychiatrist did not express any
opinions regarding the claimant's occupational limitations.
Here,
Dr. Bhutta did opine on Plaintiff's limitations, and the GAF
scores that arguably supported this opinion were grouped with
other information in reports actually used to reject that opinion.
Gilroy, unlike this case, did not raise the issue of potentially
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conflicting evidence.
The failure to resolve the conflict in this case was
particularly problematic in light of the fact that Dr. Bhutta was
a treating medical professional.
It is axiomatic that the opinion
of a claimant's treating physician is to be afforded significant
weight.
See Fargnoli, 247 F.3d at 43i Plummer v. Apfel, 186 F.3d
422, 429 (3d Cir. 1999)
(citing 20 C.F.R.
§
404.1527).
The
regulations provide that a treating physician's opinion is to be
given "controlling weight" so long as the opinion is well
supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with other substantial
evidence in the record.
20 C.F.R.
416.927(d) (2) i Fargnoli, 247
§
F.3d at 43i Plummer, 186 F.3d at 429.
In light of the importance
of the treating physician's opinion under Social Security law, and
in light of the reliance of the ALJ on reports containing the GAF
scores at issue, Defendant was not substantially justified in
opposing a remand for further discussion.
This was not merely the
Commissioner arguing against a finding of disability, it was the
Commissioner arguing against further development of the record on
a crucial point.
Accordingly, the Court finds that Defendant's opposition to
remand was not substantially justified, and that an award of fees
pursuant to the EAJA is warranted.
However, as stated above, the
Court finds that the amount of fees sought by Plaintiff is
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unreasonable.
As both parties acknowledge, the Court must
determine that the fees sought under the EAJA are reasonable and
may adjust the award accordingly.
U.S. 424, 433
161 (1990)
i
See Hensley v. Eckerhart, 461
(1983) i Commissioner, I.N.S. v. Jean, 496 U.S. 154,
Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.
1990) .
As Defendant points out, a significant part of Plaintiff's
primary brief contains legal analysis copied from earlier briefs
filed by this attorney.
While this was by no means inappropriate,
it does demonstrate that the amount of time claimed to have been
spent preparing a brief containing large sections that were simply
copied from other briefs is unreasonable.
2011 WL 2457692 (D. Del. June 20, 2011)
See Ongay v. Astrue,
(reducing an award of
attorney fees under the EAJA for use of boilerplate language
copied from prior briefs).
Not only does it show that much of the
work had already been done, it also shows that the issues were not
in any way novel or complex.
Likewise, counsel spent 4 hours
preparing objections to the Report and Recommendation of the
Magistrate Judge that, for the most part, simply reiterated
arguments made in the primary brief.
Therefore, the Court will reduce counsel's hours by 9 hours
to account for the unreasonable time periods spent on briefing in
what was a straight-forward, uncomplicated matter.
Seven and a
half hours of this reduction is to the time spent on the primary
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brief, and the remaining hour and a half reduction is in regard to
the objections to the Report and Recommendation.
As such, the
Court will order a payment under the EAJA for 24 hours of work,
for a total of $4,200.00. 1
s/Alan N. Bloch
United States District Judge
ecf:
Counsel of record
The Court notes that Defendant does not challenge Plaintiff's
requested hourly rate of $175.00. Section 2412{d) (2) (A) provides
that attorney fees shall not be awarded in excess of $125.00 per
hour unless the Court determines that a cost of living adjustment
should apply or that a special factor justifies a higher fee.
Applying the consumer price index shows that a rate of $175.00 per
hour appears to be reasonable.
See Garcia v. Schweiker, 829 F.2d
396, 401 (3d Cir. 1987) (holding
the consumer
index may
be used to determine cost of living adjustments under the EAJA) .
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