Klein v. Commissioner of the Social Security Administration

Filing 30

ORDER granting 24 Motion for Attorney Fees. Signed by Honorable David C Norton on July 24, 2017.(span, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
SCOTT KLEIN,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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No. 2:14-cv-02045-DCN
ORDER

This matter is before the court on a motion for attorney’s fees filed by claimant
Scott Klein (“Klein”) pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d)(1)(A). Klein requests $5,041.25 in attorney’s fees on the ground that he is a
prevailing party under the EAJA. ECF No. 24 at 2. Carolyn W. Colvin, Acting
Commissioner of the Social Security Administration (the “Commissioner”), argues that
Klein is not entitled to such fees and costs because the Commissioner’s position in this
litigation was substantially justified. The court finds that the Commissioner’s position
was not substantially justified and grants Klein’s attorney fee petition.
I. BACKGROUND
Klein filed an application for disability insurance benefits (“DIB”) on January 11,
2011, alleging disability beginning on June 4, 2004. The Social Security Administration
denied Klein’s claim initially and on reconsideration. Klein requested a hearing before
an administrative law judge (“ALJ”), and a hearing was held on August 30, 2012. The
ALJ issued its decision on November 30, 2012, finding that Klein was not disabled under
the Social Security Act. The Appeals Council declined to review the ALJ’s decision, and
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Klein filed the instant action on November 11, 2015. The magistrate judge issued an
R&R on July 28, 2015, recommending that the case be remanded to the Commissioner.
The Commissioner filed a Response of No Objections to the R&R on July 29, 2015.
Upon review, this Court adopted the Magistrate Judge’s R&R on August 17, 2015.
II. DISCUSSION
A.

Prevailing Party

Under the EAJA, a court shall award reasonable attorney’s fees to a prevailing
party in certain civil actions against the United States unless the court finds that the
government’s position was substantially justified or that special circumstances render an
award unjust. 28 U.S.C. § 2412(d)(1)(A). To qualify as a “prevailing party,” a party
“must succeed on the merits of a claim.” S-1 By & Through P-1 v. State Bd. of Educ. of
N.C., 6 F.3d 160, 170 (4th Cir. 1993) (Wilkinson, J., dissenting), adopted as majority
opinion, 21 F.3d 49 (4th Cir. 1994) (en banc). “In other words, success must be
something buttressed by a court’s authority or required by a rule of law. The lawsuit
must materially alter the ‘legal relationship’ between plaintiffs and defendants.” Id.
Because this court reversed and remanded Klein’s case to the Commissioner for
administrative action pursuant to 42 U.S.C. § 405(g), Klein is considered the “prevailing
party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
B.

Substantially Justified

The government has the burden of proving that its position was substantially
justified. Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir. 1991). Evaluating whether
the government’s position was substantially justified is not an “issue-by-issue analysis”
but an examination of the “totality of circumstances.” Roanoke River Basin Ass’n v.

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Hudson, 991 F.2d 132, 139 (4th Cir. 1993); see also Hensley v. Eckerhart, 461 U.S. 424,
437 (1983) (“A request for attorney’s fees should not result in a second major
litigation.”). “The government’s position must be substantially justified in both fact and
law.” Thompson v. Sullivan, 980 F.2d 280, 281 (4th Cir. 1992). 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 (1988) (internal quotation marks omitted). “The
government’s non-acquiescence in the law of the circuit entitles the claimant to recover
attorney’s fees.” Crawford, 935 F.2d at 658; see also Adams v. Barnhart, 445 F. Supp.
2d 593, 595 (D.S.C. 2006) (“Where the government’s position was a result of its failure
to perform a certain analysis required by the law and its regulations, the government’s
position was not substantially justified.”). There is no presumption that losing the case
means that the government’s position was not substantially justified. Crawford, 935 F.2d
at 656.
1.

Treating Physician Testimony

Klein argues that the Commissioner’s position in this action was unreasonable
because the ALJ failed to properly evaluate Klein’s treating physician’s multiple
opinions. Pl.’s Mot. 7. The court agrees.
The requirement that an ALJ must give specific reasons for discounting a treating
physician’s testimony is well-established. Under the applicable regulations, when an
ALJ decides to give a treating physician’s opinion less than controlling weight, he or she
“must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating [physician’s] medical opinion and the reasons for that

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weight.” Titles II & XVI: Giving Controlling Weight to Treating Source Med. Opinions,
SSR 96-2P (S.S.A. July 2, 1996). In Rivers v. Astrue, No. 4:11-cv-01386, 2012 WL
2590498, at *3 (D.S.C. July 5, 2012), the court held that if the ALJ “determines that a
treating physician’s opinion should not be afforded controlling weight,” the ALJ must
then “analyze and weigh all the evidence of record” under the following factors: (1) the
length of the treatment relationship and the frequency of examinations; (2) the nature and
extent of the treatment relationship; (3) the evidence with which the physician supports
his opinion; (4) the consistency of the opinion; and (5) whether the physician is a
specialist in the area in which he is rendering an opinion. See also Avant v. Astrue, No.
4:11-cv-822, 2012 WL 1952657, at *5 (D.S.C. May 9, 2012) (finding that the ALJ “did
not comply with the proper analysis” under SSR 96-2p because he did not explain what
weight he was giving the treating physician’s opinions or specify what contradictory
evidence he was relying on.); Hilton v. Astrue, No. 6:10-cv-2012, 2011 WL 5869704, at
*3 (D.S.C. Nov. 21, 2011) (finding the ALJ’s “conclusory reason” that the treating
physician’s opinion “is against the weight of the record as a whole” insufficient to satisfy
SSR 96-2p); see also Ellis v. Astrue, No. 3:07-cv-3996, 2009 WL 578539 at *8 (D.S.C.
Mar. 5, 2009) (rejecting post hoc rationale for ALJ’s decision).
Here, a review of the record reveals that the ALJ failed to properly analyze the
multiple opinions of the treating physician Dr. Julius C. Hedden, who treated Klein from
June of 2002 to December of 2010. Indeed, the magistrate judge concluded—and this
court agrees—that the ALJ’s written decision “contains next to no analysis of [Dr.
Hedden’s] opinions.” ECF No. 18, R&R at 8. The ALJ’s explanation for his decision
consisted entirely of the following:

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I assign less weight to Dr. Hedden’s opinions, as his opinions appear to rely
on claimant’s subjective complaints as opposed to his treatment notes. His
treatment notes reflect claimant reported chronic back pain with constant
discomfort; however; he was treated conservatively prior to the date last
insured with prescription pain medication.
Tr. 25. In Strong v. Astrue, No. 0:09-cv-2101, 2010 WL 4822565 at *4-5 (D.S.C. Oct.
18, 2010), the court found the ALJ’s conclusion that the treating physician’s opinions
were entitled to little weight because they were not supported by the treatment records to
ne insufficient. Even though the ALJ explained his conclusion by pointing to evidence in
the record, the Strong court found it persuasive that the ALJ failed to address portions of
the treatment notes that supported the treating physician’s opinions. Similarly, although
there may be inconsistencies in the record here, the court finds that the ALJ failed to
explain how these inconsistencies affected the weight he gave to Dr. Hedden’s opinion.
The Commissioner now argues that the ALJ’s failure “to adequately analyze the
medical opinions does not entitle a claimant to attorney’s fees when the medical record
contains meaningful inconsistencies.” Def.’s Resp. 3. However, this explanation was not
offered in the ALJ’s decision. The Commissioner lacks substantial justification to uphold
an ALJ’s decision because the ALJ failed to properly articulate its findings. The court
cannot look to post-hoc offerings to support the Commissioner’s decision. Canady v.
Colvin, No. CA 5:12-2507, 2014 WL 4063155, at *3 (D.S.C. Aug. 14, 2014) (internal
citation omitted). The Commissioner’s position was unjustified because the ALJ failed to
follow well-established procedures in considering Dr. Hedden’s opinions.
2.

Credibility Determination

Klein also argues that the Commissioner’s position was unreasonable because the
ALJ failed to articulate his rationale in determining Klein’s credibility. Pl.’s Mot. 7.

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In making a credibility determination, “[i]t is not sufficient for [the adjudicator] to
make a single, conclusory statement [regarding a claimant’s credibility].” Soc. Sec.
Ruling 16-3p; Titles II & Xvi: Evaluation of Symptoms in Disability Claims, SSR 16-3P
(S.S.A. Mar. 16, 2016). Instead, “[t]he determination or decision must contain specific
reasons for the finding on credibility, supported by the evidence in the case record, and
must sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.” Id.; see
also Mascio v. Colvin, 780 F.3d 632, 640 (4th Cir. 2015) (finding “[n]owhere . . . did the
ALJ explain how he decided which of [the claimant’s] statements to believe and which to
discredit, other than the vague (and circular) boilerplate statement that he did not believe
any claims of limitations beyond what he found when considering [the claimant’s]
residual functional capacity.).
Here, the ALJ’s credibility determination regarding Klein consists of the
following:
In terms of claimant’s allegations, I find his testimony and assertions to be
generally credible; however, the record reflects he retained the ability to
work prior to his date last insured. I note the claimant’s condition has
worsened; however; his decline did not occur prior to the date last insured.
After careful consideration of the evidence, I find that claimant’s medically
determination impairments could reasonably be expected to cause the
alleged symptoms; however, claimant’s statements concerning the
intensity, persistence and limiting effects of these symptoms are not
credible to the extent they are inconsistent with the above residual
functional capacity.
Tr. at 26. The Magistrate Judge found that this “credibility determination [was]
conclusory.” ECF No. 18, R&R at 11. The court agrees.
The Commissioner argues that “even if the ALJ did not point to supporting
evidence, we may have an articulation error that merits remand. But we do not have a
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situation” that merits an award of attorney’s fees. Def. Resp. 9. Not so. Here, as in
Mascio, the ALJ indicated that he found Klein’s “testimony and assertions generally
credible” but then failed to explain how he decided which statements to believe and
which to discredit. Tr. 26. This court has previously held than an ALJ’s failure to
comport with the basic requirements of SSR 96-7p means that the government’s actions
are not substantially justified by law. Adams v. Barnhart, 445 F.Supp.2d 593, 596
(D.S.C. 2006). In line with Adams and Mascio, after carefully considering the
circumstances of this case, the court concludes that the government’s position was not
“substantially justified” as required to avoid a fee award. Klein’s motion for attorney’s
fees is granted in full.

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III. CONCLUSION
For these reasons, the court concludes that the Commissioner has not met its
burden of showing that its position was substantially justified. The court does not find
any special circumstances that make an award of attorney’s fees unjust. Therefore
the court GRANTS Klein’s motion for attorney’s fees in the amount of $5,041.25.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
July 24, 2017
Charleston, South Carolina

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