Monroe v. Astrue
Filing
31
DECISION AND ORDER granting 20 Motion for Attorney Fees. Plaintiff is awarded $8,999.50 in fees and expenses, which should be paid to Plaintiff's counsel unless Plaintiff has an existing debt to the government. Signed by Judge William C Griesbach on 10/18/2011. (cc: all counsel) (Griesbach, William)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
PENNY MONROE,
Plaintiff,
v.
Case No. 09-C-1163
MICHAEL ASTRUE,
Defendant.
DECISION AND ORDER
Plaintiff Penny Monroe filed this action challenging the decision of the Commissioner of
Social Security denying her disability benefits. This Court remanded the action, and Plaintiff now
seeks attorney’s fees under the Equal Access to Justice Act (EAJA). The EAJA provides that a
district court may award attorneys’ fees where: (1) the claimant was a “prevailing party”; (2) the
government's position was not “substantially justified”; (3) no special circumstances make an award
unjust; and (4) the claimant filed a timely and complete application with the district court. 28 U.S.C.
§ 2412(d)(1)(A); Krecioch v. United States, 316 F.3d 684, 687 (7th Cir. 2003). Only the second
prong is at issue here. In order for the Commissioner’s position to be substantially justified, it must
have reasonable factual and legal bases, and a reasonable connection must exist between the facts
and his legal theory. See Pierce v. Underwood, 487 U.S. 552, 565 (1988); Conrad v. Barnhart, 434
F.3d 987, 990 (7th Cir. 2006); Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). The
Commissioner bears the burden of proving his position was substantially justified. See
Golembiewski, 382 F.3d at 724.
As is common, this Court rejected a number of the Plaintiff’s arguments and remanded
based on only one. The government thus argues that its position was substantially justified because
it won on the majority of points raised. This line of argument touches on at least two problems.
First, it is becoming all-too-common that benefits appellants raise a laundry list of issues in their
briefs when few of the issues raised have arguable merit. As I noted in a recent case involving
Plaintiff’s counsel, it would be truly remarkable if a trained ALJ (a lawyer who specializes in
benefits determinations) could even be capable of making the number of errors counsel alleged.
Courts routinely receive 75 pages of briefing (brief in support, response brief, reply brief) arguing
about a mere two pages of an ALJ’s nine-page decision. One gets the impression that some
sentences penned by an ALJ have probably received more scrutiny than certain passages of the Bible
or Shakespeare, and this “kitchen sink” approach adds cost and delay to the process because a
reviewing court must sift through a half-dozen (or sometimes many more) meritless arguments
before finding the nugget of merit, assuming any of them do have merit. Some courts have cut
EAJA fees when arguments briefed have lacked merit, and this Court may take such an approach
in the future. See, e.g., Matthews-Sheets v. Astrue, 2011 WL 3437029, *1 (7th Cir. 2011).
But that is a tangent from the government’s argument, which is that because it prevailed on
most of the issues raised, its position must be deemed substantially justified. The problem with this
is that the merits of the government’s position cannot be tallied in such a win-loss fashion because
the government is only reacting to the points the plaintiff raises. The overall merit of the
Commissioner’s approach is not correlated with the number of successful or unsuccessful arguments
any plaintiff might make. (As noted above, fees might be reduced based on a number of meritless
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arguments, but that is different from the more basic question of whether fees are appropriate at all.)
The question is whether the government’s position was reasonable.
“‘Substantially justified’ does not mean ‘justified to a high degree,’ but rather ... [is] satisfied
if there is a ‘genuine dispute,’ or if reasonable people could differ as to the appropriateness of the
contested action.” Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992), quoting Pierce v.
Underwood, 487 U.S. 552 (1988).
I remanded the case because the ALJ had rejected a
psychiatrist’s opinion as to Plaintiff’s bipolar disorder on the ground that there was an absence of
objective medical evidence. I found that the psychiatrist’s opinion was as “objective” as could be
obtained for a limitation based on mental illness, and thus found it error for the ALJ to have rejected
the psychiatrist’s opinion on that basis.
The government argues it was justified in its position, however, because other courts have
upheld similar ALJ rulings on the grounds that ALJs are entitled to discount medical conditions that
are based primarily on self-reported symptoms. The key Seventh Circuit case the Commissioner
cites for that principle, however, is not comparable. Ziegler v. Astrue, 336 Fed. Appx. 563, 569 (7th
Cir. 2009). There, the ALJ did indeed discount the report of a treating psychiatrist in favor of a
consultant’s opinion that the claimant did not suffer from mental illness. The ALJ did so, however,
not because the psychiatrist’s opinion did not constitute “objective” evidence, but because the
psychiatrist’s report was inconclusive. “Dr. Bohon's report does not show much analysis and was
prepared after only one meeting with Ziegler.” Id. The psychiatrist actually gave no prognosis
because he stated that he had “just met” the claimant. Given the “inconclusiveness of the report and
the other record evidence that contradicts its conclusion,” it was not error for the ALJ to discount
the psychiatrist’s report. Id.
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The ALJ did not engage in that kind of analysis here. There was no weighing of the report
in light of other evidence, and no indication that the ALJ was discounting the report for other
reasons. (In fact, Plaintiff met with the psychiatrist here three times, not once.) The essence of the
rejection was simply that it lacked objective foundation. Without any more explanation, a
reviewing court is unable to affirm because the ALJ’s reasoning would have applied to any mental
health condition, not just the claimant’s. For this reason, I conclude the government’s position was
not substantially justified.
Accordingly, the motion for fees under EAJA is GRANTED. Plaintiff is awarded
$8,999.50 in fees and expenses, which should be paid to Plaintiff’s counsel unless Plaintiff has an
existing debt to the government.
SO ORDERED this
18th
day of October, 2011.
s/ William C. Griesbach
William C. Griesbach
United States District Judge
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