McGee v. Astrue

Filing 26

ORDER signed by Judge Lynn Adelman on 6/13/11 granting 21 Motion for Attorney Fees. (cc: all counsel) (Deitrich, Jon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

ANGIE Y. McGEE
Plaintiff,
v.

Case No. 10-C-0365

MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Defendant.

DECISION AND ORDER
I reversed and remanded the Administrative Law Judge’s decision denying plaintiff Angie
McGee’s application for social security disability benefits, finding that the ALJ violated the legal
requirements for evaluating credibility and determining residual functional capacity (“RFC”).
McGee v. Astrue, No. 10-C-365, 2011 WL 294517, at *1 (E.D. Wis. Jan. 27, 2011). Plaintiff
now moves for an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. The Commissioner opposes the motion.
I. EAJA STANDARD
Plaintiff may obtain attorney’s fees if: (1) she was a “prevailing party” in the case; (2) the
government’s position was not “substantially justified”; (3) there are no “special circumstances”
that would make an award unjust; and (4) she filed a timely application. See 28 U.S.C. §
2412(d)(1); Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009); Golembiewski v. Barnhart,
382 F.3d 721, 723-24 (7th Cir. 2004). Because I remanded the ALJ’s decision pursuant to 42
U.S.C. § 405(g), sentence four, and directed that judgment be entered in her favor, plaintiff is
a prevailing party. See Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). The EAJA motion

is timely, and the Commissioner suggests no special circumstances that would make a fee
award unjust. However, the Commissioner does contend that the government’s position was
substantially justified.
To be substantially justified, the government’s position must be “justified in substance
or in the main” or “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988).

That is, the government’s position must have

reasonable factual and legal bases, and there must be a reasonable connection between the
facts and the legal theory. Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006). The
Seventh Circuit “has identified some relevant considerations in conducting this evaluation.”
Kholyavskiy v. Holder, 561 F.3d 689, 691 (7th Cir. 2009):
For instance, courts are more likely to conclude that the Government’s position
is substantially justified if it is supported by our precedent or that of other courts.
See Krecioch v. United States, 316 F.3d 684, 689 (7th Cir. 2003) (finding the
Government’s position to be substantially justified in part because it was
“supported by precedent from other federal circuits”). Moreover, “uncertainty in
the law arising from conflicting authority or the novelty of the question weighs in
the government’s favor when analyzing the reasonableness of the government’s
litigation position.” Marcus v. Shalala, 17 F.3d 1033, 1037 (7th Cir. 1994). By
contrast, “[s]trong language against the government’s position in an opinion
assessing the merits of a key issue is evidence in support of an award of EAJA
fees,” Golembiewski, 382 F.3d at 724, as is wholesale rejection of the
Government’s arguments by the [court on the merits], see id. at 725 (awarding
fees and observing that “[w]e did not reject any issue raised by the plaintiff on
appeal nor did we adopt or affirm any position taken by the Commissioner”).
Id. at 691-92.
EAJA fees may be awarded if the government’s pre-litigation conduct, including the
ALJ’s decision, or its litigation position are not substantially justified. However, the court makes
only one determination for the entire civil action. Conrad, 434 F.3d at 990; see also Stewart,
561 F.3d at 683 (“The Commissioner bears the burden of proving that both his pre-litigation
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conduct, including the ALJ’s decision itself, and his litigation position were substantially
justified.”).
II. DISCUSSION
At the merits stage, plaintiff argued that the ALJ erred in evaluating credibility and RFC.
I agreed with her on both issues. I address each in turn under the EAJA standard. See
Cummings v. Sullivan, 950 F.2d 492, 498 (7th Cir. 1991) (explaining that the “substantial
evidence” and “substantial justification” standards are used at different stages and involve
different tests).
A.

Credibility
In evaluating the credibility of plaintiff’s testimony, the ALJ found that plaintiff’s

“medically determinable impairments could reasonably be expected to cause the alleged
symptoms; however, [plaintiff’s] statements concerning the intensity, persistence and limiting
effects of these symptoms are not credible to the extent they are inconsistent with the existing
medical evidence.” (Tr. at 16.) In so ruling, the ALJ erred in two fundamental respects.
First, as both the regulations and Seventh Circuit case-law make clear, once an ALJ
finds that the claimant’s impairments could reasonably be expected to produce the symptoms
alleged, the ALJ may not reject the claimant’s testimony about the severity of those symptoms
based solely on a lack of support in the medical evidence. See, e.g., SSR 96-7p (“[W]henever
the individual’s statements about the intensity, persistence, or functionally limiting effects of
pain or other symptoms are not substantiated by objective medical evidence, the adjudicator
must make a finding on the credibility of the individual’s statements based on a consideration
of the entire case record.”); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir. 2010) (“As countless

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cases explain, the etiology of extreme pain often is unknown, and so one can’t infer from the
inability of a person’s doctors to determine what is causing her pain that she is faking it.”); Moss
v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009) (stating that “an ALJ cannot disregard subjective
complaints of disabling pain just because a determinable basis for pain of that intensity does
not stand out in the medical record”).
Second, the ALJ used the same type of boilerplate language the Seventh Circuit has
made quite clear will not be accepted by the courts. See, e.g., Spiva v. Astrue, 628 F.3d 346,
348 (7th Cir. 2010) (noting that ALJ opinions denying benefits “routinely state (with some
variations in wording) that although ‘the claimant’s medically determinable impairments could
reasonably be expected to produce the alleged symptoms, . . . the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible,’ yet fail to indicate which statements are not credible and what exactly ‘not entirely’
is meant to signify”); Parker, 597 F.3d at 921-22 (“It is not only boilerplate; it is meaningless
boilerplate.”); see also Punzio v. Astrue, 630 F.3d 704, 709 (7th Cir. 2011) (“[T]o read the ALJ’s
boilerplate credibility assessment is enough to know that it is inadequate and not supported by
substantial evidence. That is reason enough for us to reverse the judgment[.]”).
Later in his decision, the ALJ provided some additional reasons for finding plaintiff
incredible, but those reasons were also inconsistent with Seventh Circuit law. First, the ALJ
noted plaintiff’s limited work history, but he failed to appreciate that in cases like this one –
where the claimant alleges disability based primarily on chronic conditions rather than some
traumatic event or injury – employment history may mean little absent further evaluation as to
why the work record is limited. See Sarchet v. Chater, 78 F.3d 305, 308 (7th Cir. 1996)
(rejecting the ALJ’s reliance on poor work history where the claimant had long suffered from
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numerous impairments rendering her unemployable). Second, the ALJ relied on a list of
plaintiff’s daily activities without explaining how those fairly limited activities meant she could
work full-time outside the home. See, e.g., Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir.
2006) (“We have cautioned the Social Security Administration against placing undue weight
on a claimant’s household activities in assessing the claimant’s ability to hold a job outside the
home.”). Finally, the ALJ relied on plaintiff’s ability to care for her five children, without
acknowledging that, at the time of the hearing, three of the five were adults and just one was
under the age of fifteen. Nor did the ALJ consider that plaintiff previously lost her children to
child protective services and gave one child up for adoption. In any event, the Seventh Circuit
has noted that because a parent must take care of her children, or else abandon them to foster
care, she may be impelled to heroic efforts not transferrable to the work-place. Gentle v.
Barnhart, 430 F.3d 865, 867 (7th Cir. 2005).
In his EAJA response, the Commissioner essentially rehashes the arguments he made
at the merits stage. He first states that while some of the ALJ’s language may have been
boilerplate, such language is included for the benefit of non-attorney claimants unfamiliar with
social security legal standards. This misses the point. I did not reverse because the ALJ
included in his decision explanatory paragraphs concerning the credibility standards; rather,
I reversed because the ALJ’s actual credibility finding in this case used the same, seemingly
ubiquitous, iteration condemned by the Seventh Circuit in Martinez v. Astrue, 630 F.3d 693 (7th
Cir. 2011); Spiva v. Astrue, 628 F.3d 346 (7th Cir. 2010); and Parker v. Astrue, 597 F.3d 920
(7th Cir. 2010); see also Sorenson v. Astrue, No. 10-C-0582, 2011 WL 1043362, at *8 (E.D.
Wis. Mar. 18, 2011) (“The Seventh Circuit has made clear that this boilerplate language, which
routinely appears in ALJ decisions, is unacceptable.”).
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Also as he did at the merits stage, the Commissioner in his EAJA response attempts to
distinguish Parker on its facts. However, he says nothing at all about Punzio, Martinez, and
Spiva. Those cases came down after the Commissioner filed his brief on the merits, which
explains why he did not address them at that stage. There is no similar excuse for his failure
to address these decisions at this point.1 As I explained in the merits decision, these cases
leave “no doubt” that such language is insufficient.2 McGee, 2011 WL 294517, at *2. This type
of strong language rejecting the government’s position on the merits supports an award of
EAJA fees.
In arguing substantial justification, the Commissioner, again as he did at the merits
stage, points to the other reasons provided by the ALJ, e.g., plaintiff’s daily activities and poor
work history. But he makes no effort to justify the ALJ’s errors under Sarchet, Mendez, and
Gentle. Violation of the clear precedent represented by those decisions constitutes a basis for
awarding EAJA fees. See, e.g., Golembiewski, 382 F.3d at 724.
B.

RFC Determination
I also found, at the merits stage, that the ALJ erred in determining RFC. Specifically,

despite finding that plaintiff experienced moderate difficulties in concentration, persistence, and
pace, the ALJ failed to account for those limitations in the RFC or in his questions to the
vocational expert (“VE”). The Seventh Circuit has held that limiting a claimant with such
restrictions to “simple, routine” tasks, as the ALJ did here, will not ordinarily suffice. See

1

Nor does the Commissioner in his EAJA response address the ALJ’s first error under
SSR 96-7p, Parker, and Moss.
2

I note that these decisions did not create new law; they merely applied and re-affirmed
the principles set forth in Parker and SSR 96-7p.
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O’Connor-Spinner v. Astrue, 627 F.3d 614, 619-20 (7th Cir. 2010). As the O’Connor-Spinner
court explained, the ALJ must orient the VE to the totality of the claimant’s limitations, including
any deficiencies of concentration, persistence, and pace. Id. at 619 (citing Stewart v. Astrue,
561 F.3d 679, 684 (7th Cir. 2009); Kasarsky v. Barnhart, 335 F.3d 539, 544 (7th Cir. 2003);
Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002)). While the ALJ need not invariably use
the specific terminology “concentration, persistence, and pace” in his hypothetical questions
to the VE, in the absence of this language the record must contain some other indication that
the VE was aware of such limitations. The record in this case contained no such indication.
Nor was this a case where the claimant’s deficiencies in concentration, persistence, and pace
were stress- or panic-related and thus could be accommodated by the ALJ’s restriction to
low-stress work. Id. (citing Arnold v. Barnhart, 473 F.3d 816 (7th Cir. 2007); Johansen v.
Barnhart, 314 F.3d 283 (7th Cir. 2002)).
In his EAJA response, the Commissioner argues that the ALJ utilized alternative
phrasing specifically excluding those tasks that someone with plaintiff’s limitations would be
unable to perform, which the O’Connor-Spinner court recognized as acceptable. However, the
Commissioner fails to discuss my findings at the merits stage that none of the exceptions to
the general rule discussed in O’Connor-Spinner applied in this case. As I also mentioned at
the merits stage, plaintiff’s counsel, in a post-hearing letter-brief, specifically drew the ALJ’s
attention to her limitations in concentration, interaction with others, and handling work stress,
with specific citations to the evidence, yet the ALJ failed to account for this evidence and these
putative limitations. McGee, 2011 WL 294517, at *2 n.2. The Commissioner makes no
mention of this in his EAJA response.

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C.

Conclusion as to Substantial Justification
At the merits stage, I agreed with plaintiff on both of the primary errors she alleged, and

I adopted no position taken by the Commissioner.

The ALJ’s decision violated clearly

established circuit precedent, and my merits decision contains strong language against the
government’s position. Therefore, I find that the Commissioner has failed to demonstrate
substantial justification. Accordingly, plaintiff is entitled to a fee award.
D.

Reasonableness of the Amount Requested
Once found eligible for an award, the fee-claimant must demonstrate that the amount

of her request is reasonable, both as to the rate and the number of hours requested. See, e.g.,
Lechner v. Barnhart, 330 F. Supp. 2d 1005, 1011 (E.D. Wis. 2004). On review of her
submission, I find plaintiff’s request reasonable.3 I also find that plaintiff is entitled to the
additional fees requested for preparation of her EAJA reply. See Commissioner, INS v. Jean,
496 U.S. 154, 162 (1990); Lechner, 330 F. Supp. 2d at 1013.
III. CONCLUSION
THEREFORE, IT IS ORDERED that plaintiff’s motion for an award of attorney’s fees (R.
21) is GRANTED, and plaintiff is awarded fees in the amount of $6406. Under Astrue v. Ratliff,
130 S. Ct. 2521 (2010), defendant should, after complying with procedures for determining any
debts owed by plaintiff, make the check payable to plaintiff and mail it to Attorney David Traver.
Dated at Milwaukee, Wisconsin this 13th day of June, 2011.
/s Lynn Adelman
_____________________________
LYNN ADELMAN
District Judge
3

The Commissioner does not argue otherwise.
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