Lavadour v. Astrue

Filing 28

MEMORANDUM DECISION granting in part 26 Motion for Attorney Fees. The Court awards Plaintiff $3,135.25 in EAJA fees. Such fees are ordered payable to Plaintiff. Signed by Magistrate Judge Brooke C. Wells on 11/15/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
PATRICIA A. LAVADOUR,

MEMORANDUM DECISION AND ORDER
GRANTING IN PART AMENDED MOTION
FOR ATTORNEY’S FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

Case No. 2:11-cv-1163-BCW
Magistrate Judge Brooke Wells

Before the Court is Plaintiff’s amended motion for attorney fees1 pursuant to the Equal
Access to Justice Act (“EAJA”) 28 U.S.C. § 2412(d). Plaintiff requests $6,276.50 to be paid by
the United States Government pursuant to the EAJA.
BACKGROUND
This case arises from an appeal of a decision of the Commissioner of the Social Security
Administration denying Plaintiff’s claims for disability benefits under the Social Security Act.
On March 21, 2013, this Court issued a Memorandum Decision and Order reversing and
remanding for further consideration Plaintiff’s disability claim.2 The Court reversed and
remanded the Administrative Law Judge’s (“ALJ”) decision based upon the lack of substantial
evidence supporting the ALJ’s evaluation of the Plaintiff’s treating and examining physicians.3
In 2007, Plaintiff was referred to Dr. David G. Ericksen, Ph.D. for a psychological
evaluation.4 In relevant part, the ALJ’s opinion described the findings of Dr. Ericksen as follows:

1

Docket no. 26.
Docket no. 20.
3
Id.
4
Docket no. 6, Administrative Record (“Tr.”) at 24.
2

Her test results suggested that she would be best suited to jobs involving simple,
repetitive tasks, rather than acute judgment and insight. It was suggested that she
undergo a thorough, psychiatric evaluation and have access to individual
psychotherapy. In her current emotional condition, the doctor was of the opinion
that she would be a poor prospect for employment or job training. Diagnostic
impression was major depression (severe, without psychotic features), a cognitive
disorder NOS, a R/O of a somatoform disorder NOS and a R/O of a personality
disorder NOS (borderline, antisocial and histrionic features). Her global
assessment of functioning (GAF) was placed at 50.5

With regard to this opinion, the ALJ did not state what weight, if any, he gave to
Dr. Ericksen’s opinion or any reasons for accepting or rejecting it. 6 After review of the
record and the parties’ arguments, the Court made the following findings with regard to
Dr. Ericksen:
There can be no doubt that Dr. Ericksen is an acceptable medical source. He is a
psychologist who examined the Plaintiff and performed various tests. In addition,
Dr. Erickson provided a medical opinion. Dr. Ericksen discussed the Plaintiff’s
symptoms, diagnosis, prognosis, recommended treatment regime and issues
Plaintiff may encounter through job training. In addition, the GAF score given
by Dr. Ericksen was in line with Ms. Wolfinger’s assessments. Thus, although
Dr. Ericksen’s opinion was rendered prior to the alleged onset date, the ALJ
should have provided the weight, if any, to be given to Dr. Ericksen’s opinion or
at least discussed why this opinion was rejected or accepted. Instead, the ALJ’s
opinion did not provide any discussion as to Dr. Ericksen after a summary of his
findings. In addition, without re-weighing the evidence, this is not a harmless
error. As the Plaintiff points out, the ALJ’s failure to credit Dr. Ericksen’s
medical opinion could have caused harm to the Plaintiff, because if the opinion
were properly considered could have altered the weight given to other medical
opinions or possibly supported a finding of disability.7
In addition to not weighing Dr. Ericksen’s opinion, the ALJ did not give any medical
opinion “controlling weight.”8 Rather, the ALJ gave “more weight” to the opinion of Dr. Ririe, a
state examining physician and “weight” to the opinion of Dr. Justin Johnsen, a consultative

5

Id.
Id.
7
Docket no. 20. at 14.
8
Tr. at 17-35.
6

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physician.9 As to other state agency physician opinions, the ALJ stated “…the State agency
physicians have reviewed the medical records and are experienced and knowledgeable regarding
SSA disability requirements.”10 The ALJ did not discuss any other weight or reasons for
rejection or acceptance of state agency physicians’ opinions.
Upon review, the Court found the ALJ’s lack of specificity as to the weight assigned to
the medical opinions of Dr. Johnsen, Dr. Ririe and the state agency physicians lacked specificity
and warranted further review and remand.11 The Court also found the ALJ erred by stating that
the state agency physician opinions were not entitled to controlling weight but then did not
assign any lesser weight nor provide any reasoning in order for the Court to discern whether
those opinions were accepted or rejected.12
Based upon the Court’s decision, Plaintiff became the prevailing party for purposes of the
EAJA. Plaintiff now moves the Court for an award of attorney fees under the EAJA in the
amount of $6,276.50. The Commissioner does not contest the amount, or the fact that the
Plaintiff was the prevailing party. However, the Commissioner asserts that her position was
substantially justified and therefore an award of attorney’s fees is improper.
STANDARD
The EAJA provides that in civil actions, a party who prevails against the United States is
entitled to an award of attorney’s fees “unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award unjust.”13 The
only dispute in this Motion is whether the Commissioner’s position was substantially justified.

9

Tr. at 24-29.
Tr. at 32-33.
11
Docket no. 20.
12
Id.
13
28 U.S.C. § 2412(d)(1)(A).
10

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“The test for substantial justification in this circuit is one of reasonableness in law and
fact.”14 Accordingly, the government’s position must be “justified to a degree that could satisfy
a reasonable person.”15 “[A] position can be justified even though it is not correct, and . . . it can
be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that
is if it has a reasonable basis in law and fact.”16 Of note, is the distinction between the
substantial evidence standard under the Social Security Act, and the substantial justification
requirement under the EAJA.17 As articulated by this Circuit and other circuits which have
directly addressed this issue, “equating a lack of substantial evidence with a lack of substantial
justification would result in an automatic award of attorney’s fees in all social security cases in
which the government was unsuccessful on the merits.”18 Moreover, to hold these two standards
synonymous appears improper under the history behind the statute,19 and at odds with the
Supreme Court’s decision in Pierce v. Underwood.20 Thus, “a lack of substantial evidence on the
merits does not necessarily mean that the government’s position was not substantially
justified.”21
ANALYSIS
A. Substantial Justification
The EAJA provides for an award of attorney fees to a prevailing party “unless the court
finds that the position of the United States was substantially justified or that special

14

Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)(internal citations omitted).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
16
Id.at 552, n. 2.
17
See Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir. 1988).
18
Id.
19
See Taylor v. Heckler, 835 F.2d 1037, 1044 (3rd Cir. 1987)(examining the legislative history of the EAJA and
concluding Congress “left the door open to the possibility that the government could demonstrate that a denial of
disability benefits that flunked substantial evidence review was nonetheless substantially justified.”).
20
487 U.S. 552.
21
Hadden, at 1269.
15

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circumstances make an award unjust.”22 The Commissioner argues the position of the
Government was substantially justified and therefore, an award of fees under the EAJA is not
appropriate in this case.
1. Dr. Erickson’s Opinion
In her Opposition to the present motion, the Commissioner argues that her position with
respect to the opinion of Dr. Erickson was reasonable in law and in fact because Dr. Erickson’s
statements are not a medical opinion as defined by the regulations because “Dr. Ericksen’s
statement provides little insight into Plaintiff’s actual restrictions.”23 Further, the Commissioner
argues that “Dr. Ericksen’s statement that Plaintiff ‘would be a poor prospect for employment or
job training’ was akin to an opinion as to whether Plaintiff was disabled and unable to work and
is not valid because Dr. Ericksen’s statements concern administrative findings reserved to the
Commissioner.”24
The Court finds the Commissioner’s arguments regarding Dr. Ericksen to be
unpersuasive. It is clear that Dr. Erickson did in fact render a medical opinion under 20 C.F.R. §
416.927(a)(2) which provides, “medical opinions are statements from physicians and
psychologists or other acceptable medical sources that reflect the judgments about the nature and
severity of [a claimant’s] impairments, including…symptoms, diagnosis, and prognosis, what [a
claimant] can still do despite impairment(s), and [a claimant’s] physical or mental restrictions.”25
First, Dr. Ericksen is a psychologist26 and after examining Plaintiff rendered an opinion as to
Plaintiff’s psychological diagnosis and prognosis. Although in one sentence of his opinion, Dr.
Ericksen opined that Plaintiff would be a poor prospect for employment or job training in her
22

28 U.S.C. § 2412 (d).
Docket no. 24 at 4.
24
Id.
25
20 C.F.R. § 416.927(a)(2).
26
Tr. at 24. (“The claimant was referred to David G. Ericksen, Ph.D., for a psychological evaluation.”)
23

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current emotional state; Dr. Ericksen also made other findings with regard to Plaintiff’s
restrictions. In addition, despite § 416.927’s directive that “[r]egardless of its source, we will
evaluate every medical opinion we receive. Unless we give a treating source’s opinion
controlling weight…we consider all of the following factors in deciding the weight we give to
any medical opinion,”27 the ALJ did not provide any weight nor discussion as to Dr. Ericksen’s
opinion. Therefore, the Court agrees with Plaintiff as to Dr. Ericksen’s opinion that the
Commissioner’s position was not supported by substantial evidence because “…the ALJ did not
properly consider Dr. Ericksen’s opinion nor the his diagnosis of anxiety as a serious
impairment, nor his testing, nor the inference of these findings leading Dr. Ericksen to form an
opinion of Ms. Lavadour’s inability to work.”28
2. Opinions of Dr. Johnsen, Dr. Ririe, and State Agency Physicians.
Upon appeal, Plaintiff did not take issue nor did the parties brief the deficiencies
associated with the opinions of Dr. Johnsen, Dr. Ririe or the state agency physicians. However,
upon review the Court found the “ALJ’s lack of specificity as to the weight assigned to each of
the medical opinions [warrants] further review and remand.”29 In response to the present
Motion, the Commissioner argues that given a chance to address these opinions, the
Commissioner’s position would have been reasonable because none of the opinions were
consistent with disability and the ALJ assessed greater limitations than the state agency
physician opinions.30 Further, the Commissioner argues that “…any deficiency in the ALJ’s
weighing of these opinions is harmless because even if he had granted them controlling weight,

27

20 C.F.R. § 416.927.
Docket no. 27 at 4-5.
29
Docket no. 20.
30
Docket no. 24 at 5-6.
28

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they would support the ALJ’s ultimate conclusion that Plaintiff was not disabled.”31 Plaintiff, on
the other hand argues, “[t]he government does not tell us why the ALJ was reasonable in failing
to be specific as to his weighing of opinions—only that it is has an argument of how the ALJ
could have weighed the various medical opinions so as to be consistent with the ALJ’s
decision.”32
Upon review of the record and the Court’s previous Order, the Court finds that under the
“substantial justification” standard of the EAJA, the Commissioner’s arguments as related to
Drs. Johnsen, Ririe and the state agency physicians have merit. While not argued or briefed by
the parties, the Court scrutinized the ALJ’s opinion as to these medical opinions. The Court
found that the ALJ’s findings as to Dr. Johnsen, Ririe and the state agency physicians were not
specific enough to warrant meaningful judicial review. The Court made these findings after
finding the ALJ erred in his evaluation of Dr. Ericksen’s opinion and in order to “remind the ALJ
to heed the requirement to evaluate every medical opinion in the record”33 However, with regard
to these medical opinions, the ALJ’s opinion viewed in isolation may have constituted a
“harmless error” as the Commissioner has argued because none of these physicians opined
Plaintiff was disabled. Therefore, under the substantial justification standard, the Court finds
that with regard to the opinions of Drs. Johnsen, Ririe and the State Agency physicians, the
Commissioner’s position “can be justified even though it is not correct, and . . . it can be
substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is
if it has a reasonable basis in law and fact.”34

31

Docket no. 24, at p. 6.
Docket no. 27 at p. 5.
33
Sitsler v. Astrue, 410 Fed. App’x 112, 119 (10th Cir. 2011).
34
Pierce v. Underwood, 487 U.S. 552 n. 2.
32

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B. Fee Request
Finally, although the amount of attorney’s fees requested by the Plaintiff is not
challenged by the Commissioner, the Court concludes that the proper resolution with regard to
fees in this case lies the middle of what the Plaintiff is requesting. The Court’s decision is based
upon the foregoing discussion and the finding that Commissioner’s position with regard to Dr.
Ericksen was not substantially justified and the finding that the Commissioner’s position with
regard to Drs. Johnsen, Ririe and the State Agency Physicians was substantially justified.
Therefore, the Court within its discretion will reduce the amount of attorney’s fees awarded to
the Plaintiff by half.
ORDER
Based on the foregoing, the Court finds that a partial award of EAJA fees is appropriate
given the circumstances of this case. Accordingly, Plaintiff’s Amended Motion for Attorney’s
Fees is GRANTED IN PART.35 The Court awards Plaintiff $3,135.25 in EAJA fees. Such fees
are ORDERED payable to Plaintiff.36
IT IS SO ORDERED.
DATED this 15 November 2013.

Brooke C. Wells
United States Magistrate Judge

35

Docket no. 26.
See Astrue v. Ratliff, 130 S.Ct. 2521 (2010)(holding “a § 2412(d) fees award is payable to the litigant (not the
litigant’s attorney) and is therefore subject to a Government offset to satisfy a pre-existing debt that the litigant owes
the United States.”)
36

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