Travis v. Astrue

Filing 23

ORDER denying 17 Motion for Attorney Fees under the EAJA. Signed by Chief Judge Barbara B. Crabb on 3/23/2010. (arw)

IN THE UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF WISCONSIN

JA CK TRAVIS, P l a i n t i ff , v. MICHAEL ASTRUE, Co m m issioner of Social Security, D efendan t. O P IN IO N AND ORDER 0 9 - cv ­ 7 7 -b b c

O n October 21, 2009, I issued an order remanding this case to the commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Judgment was entered on October 23, 2009. Now before the court is plaintiff Jack Travis's application for an aw ard of attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. Plaintiff is seeking fees in the amount of $4,385.65. Defendant does not dispute the amount of the fees so ugh t but does dispute the characterization of his position as unjustified. Because I find that defendant's position was justified, I will deny plaintiff's application for attorney's fees an d costs.

1

FA CT S T he relevant facts are set forth in the opinion and order of October 21, 2009. To recap, plaintiff applied for supplemental security income on April 2, 2004, alleging that he w as unable to work because of third degree burns covering 60 percent of his body, Hepatitis C , liver problems, poor circulation and post traumatic stress disorder. At the time, plaintiff w as 41 years old and had past relevant work experience as a painter. Plaintiff's medical records showed that he had been treated for depression and chronic pain related to his hepatitis C and burn injuries. Also, he had received treatment for post traumatic stress d is o rd er . At the request of the state disability agency, Dr. Linda Ingison performed a co n su ltative examination of plaintiff. She found that plaintiff's concentration and attention w ere in the adequate to low-adequate range but that his difficulties would be probably high in areas of stress, change and pacing demands. After the state agency denied his application, plaintiff requested a hearing before an a d m in istrative law judge, who determined that plaintiff retained the residual functional capacity to perform simple, repetitive work at the light and sedentary exertional levels that requ ired only minimal contact with the public, supervisors and coworkers. In making this d ecisio n , he discounted the opinion of plaintiff's treating physician, Dr. Lozeau, regarding p lain tiff's limitations and assigned substantial weight to the opinions of Dr. Feinsilver and 2

D r. Ingison. Relying on a vocational expert's response to a hypothetical incorporating the residual functional capacity assessment, the administrative law judge found that plaintiff was not disabled because he could perform either his past work as a maintenance worker as he had actually performed it or certain other jobs available in the economy. The administrative la w judge's decision became the final decision of the commissioner when the Appeals C ouncil denied plaintiff's request for review. O n appeal to this court, plaintiff argued that the administrative law judge "played d octo r" in rejecting Dr. Lozeau's opinion in favor of a finding that plaintiff is capable of m eetin g the physical demands of light and sedentary work; failed to account for limitations p o sed by plaintiff's hepatitis; afforded too much weight to Dr. Feinsilver's opinion; did not adeq uately explain his residual functional capacity assessment; made an erroneous credibility determ ination; failed to consider his impairments in combination in determining his residual fu nctio n al capacity; incorrectly determined that plaintiff could perform his past work; and erred in making his step five decision. I remanded the case to allow the administrative law judge to explain how he in co rp o rated into his residual functional capacity assessment Dr. Ingison's opinion con cernin g plaintiff's limitations in pace, stress and change. In all other respects, I affirmed th e commissioner's decision.

3

O PIN IO N U nder the substantially justified standard, a party who succeeds in a suit against the go vernm ent is not entitled to fees if the government took a position that had "'a reasonable basis in law and fact.'" Young v. Sullivan, 972 F.2d 830, 835 (7th Cir. 1992) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)). To satisfy the substantial justification standard, the government must show that its position was grounded in (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced. United S tates v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000). Put another w a y, "[t]he test for substantial justification is whether the agency had a rational ground for thinkin g it had a rational ground for its action." Kolman v. Shalala, 39 F.3d 173, 177 (7th C ir . 1994). The government carries the burden of proving that its position was substantially justified. Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The commissioner can m eet his burden if there was a "genuine dispute," or if reasonable people could differ as to the propriety of the contested action. Pierce, 487 U.S. at 565. When considering whether the government's position was substantially justified, the co urt must consider not only the government's position during litigation but also its position w ith respect to the original government action which gave rise to the litigation. 28 U.S.C. § 2412(d)(1)(B) (conduct at administrative level relevant to determination of substantial 4

justificatio n ); Gotches v. Heckler, 782 F.2d 765, 767 (7th Cir. 1986). A decision by an adm inistrative law judge constitutes part of the agency's pre-litigation conduct. G olem biew ski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). "EAJA fees may be awarded if either the government's prelitigation conduct or its litigation position are not substantially justified. However, the district court is to make only one determination for the entire civil action." Marcus, 17 F.3d at 1036 (internal citations omitted); see also Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996) (Equal Access to Justice Act requires single substantial justification determination that "simultaneously encompasses and accommodates the entire civil action"). Thus, fees may be awarded where the government's prelitigation conduct was n o t substantially justified despite a substantially justified litigation position. Marcus, 17 F.3d at 1036. The decision of the administrative law judge is considered part of the defendant's prelitigation conduct, making an examination of that conduct necessary to the substantial justification inquiry. Golembiewski, 382 F.3d at 724. The critical issue in this case was whether the administrative law judge took into accou nt plaintiff's limitations in concentration, persistence and pace when he made his findin g that plaintiff could perform simple, repetitive work. Plaintiff argued that the phrase "sim ple, repetitive" work was meaningless, relying on the court of appeals' decisions in Craft v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008), and Stewart v. Astrue, 561 F.3d 679, 685 (7th Cir. 2009), in which the court was critical of residual functional capacity assessments 5

that purported to account for the plaintiff's mental limitations by restricting the plaintiff to "sim p le, unskilled" or "simple, routine" tasks. The commissioner responded that Craft and Stew art were distinguishable because the claimants in those cases had mental limitations that w ere rated as "moderate," whereas plaintiff's concentrational limitations were rated only as "m ild plus." Although I found that the commissioner's argument was not without merit, I con cluded that the administrative law judge was required to account for plaintiff's lim itations in concentration in his residual functional capacity assessment. The

a d m i n i strative law judge did not include any limitations that appeared on their face to accou nt for Ingison's finding that plaintiff would have difficulties in the areas of stress, change and pacing and that the jobs identified by the vocational expert seemed to require a fast pace, high production quotas or both. I noted that, although it was possible that the administrative law judge might have in terp reted Ingison's remarks to mean merely that plaintiff would have difficulty performing such jobs, it was not possible to discern that from his decision. I remanded the case because I could not determine whether his decision was supported by substantial evidence unless he explained how he reduced Ingison's opinions regarding plaintiff's work abilities to the conclusion that plaintiff was capable of simple, repetitive work requiring only minimal con tact with others.

6

R elying on Stein v. Sullivan, 966 F.2d 317, 319-20 (7th Cir. 1992), the commissioner a r g u e s that when, as in this case, the administrative law judge's only error is a failure to exp lain his reasons with sufficient detail, the court is on solid ground denying an award of fees to the plaintiff. I agree. As in Stein, this was not a case in which the administrative law ju dge gave unsupported or illogical reasons for his decision, but rather one in which his ratio n ale on one point was simply not clear enough to permit informed review. Except for this one point, I agreed with the commissioner that the administrative law judge had adhered to the regulations and reached a decision supported by substantial evidence. Having

review ed the administrative law judge's decision, my order on the merits and the parties' b riefs, I am persuaded that the government's pre-litigation position and its litigation position in this case were substantially justified. Therefore, I will deny plaintiff's application for attorney fees and costs under the Equal Access to Justice Act.

ORDER IT IS ORDERED that plaintiff Jack Travis's application for an award of attorney fees

7

and expenses under the Equal Access to Justice Act, dkt. #17, is DENIED. E n tered this 23r d day of March, 2010. B Y THE COURT: /s/ B AR B AR A B. CRABB D istrict Judge

8