Naug, Lisa v. Colvin, Carolyn

Filing 25

ORDER denying 17 Motion for Attorney Fees under the EAJA; denying 23 Second Motion for Attorney Fees under the EAJA. Signed by District Judge James D. Peterson on 4/4/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

LISA NAUG,

v.

Plaintiff,

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

ORDER
14-cv-818-jdp

Defendant.
Plaintiff Lisa Naug sought judicial review of a final decision of defendant Carolyn W.
Colvin, Acting Commissioner of Social Security, finding her not disabled within the meaning
of the Social Security Act. The court heard oral argument on December 3, 2015. On
December 8, 2015, the court issued an order remanding this case to the Commissioner for
further proceedings. Dkt. 15.
Now Naug, through her attorney Dana W. Duncan, moves the court for an order
awarding $6,671.84 in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412. Dkt. 17. Naug has also filed a second motion for an additional $855.89 in fees,
which accounts for the time that Naug’s attorney spent responding to the Commissioner’s
opposition. Dkt. 23. The Commissioner opposes any EAJA fee award because its position was
substantially justified.
Under the EAJA, the court will award attorney fees to a party who prevails in
litigation against the United States if: (1) “the claimant is a ‘prevailing party’”; (2) “the
government’s position was not substantially justified”; (3) no “special circumstances make an
award unjust”; and (4) “the fee application is submitted to the court within 30 days of final
judgment and is supported by an itemized statement.” United States v. Hallmark Const. Co.,

200 F.3d 1076, 1078-79 (7th Cir. 2000) (citing 28 U.S.C. § 2412(d)(1)(A), (B)). The
Commissioner does not dispute that Naug is a prevailing party, that no special circumstances
render an award unjust, or that Naug’s motion was timely. Nor does the Commissioner
object to counsel’s hourly rate or the amount of time. The court must decide only whether
the Commissioner’s position was substantially justified.
The Commissioner’s position is substantially justified if it had a “reasonable basis
both in law and fact” and was “justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988); see also Stewart v. Astrue, 561 F.3d 679, 683
(7th Cir. 2009) (“A position taken by the Commissioner is substantially justified if it has a
reasonable basis in fact and law, and if there is a reasonable connection between the facts and
the legal theory.”). The result alone “does not establish whether [the Commissioner’s]
position was substantially justified. Conceivably, the Government could take a position that
is not substantially justified, yet win; even more likely, it could take a position that is
substantially justified, yet lose.” Pierce, 487 U.S. at 569. The EAJA is not a fee-shifting
statute; the prevailing party does not presumptively recover its attorney fees. Hallmark, 200
F.3d at 1079. Nevertheless, “the government bears the burden of proving that its position
meets the substantially justified standard,” both before and during litigation. Id. at 1079-80.
The court also considers the larger policy behind the EAJA:

[t]he potential threat of having to pay for the litigation costs
of the opposing party may serve as an encouragement to
government agencies to investigate, prepare and pursue
litigation against private parties in a professional and
appropriate manner. Likewise, the potential for recovering the
expenses a private party puts forward to oppose the
government encourages members of the public to assist in the
valuable public service [of] improving the efficiency of
government operations.
2

Id. at 1080 (internal quotation marks omitted).
Turning to the Commissioner’s position here, both the ALJ’s decision (i.e., the
Commissioner’s prelitigation position) and the Commissioner’s position before this court
(i.e., its litigation position) were substantially justified. The primary issue before the court
was whether the ALJ improperly discounted the opinions of Naug’s treating physician, Dr.
Aston. 1 When determining Naug’s residual functional capacity (RFC), the ALJ afforded Dr.
Aston’s opinions “lesser weight” because: (1) the objective medical tests on which Dr. Aston
relied were not in the record; (2) Dr. Aston relied on Naug’s subjective complaints, which the
ALJ had determined to be not credible; (3) Dr. Aston’s opinions were not consistent with the
relatively moderate symptoms that Dr. Durette had documented; (4) Dr. Aston did not
specify when disabling limitations first affected Naug; and (5) Dr. Aston could not say
whether

forthcoming

treatment

would

alleviate

Naug’s

symptoms.

R.

20. 2

The

Commissioner’s position before this court was similar: the ALJ reasonably assigned Dr.
Aston’s opinions lesser weight after determining that no objective medical evidence in the
record supported the opinion, that Dr. Aston relied on Naug’s incredible subjective
statements, and that the opinions conflicted with other medical opinions in the record.
Dkt. 10, at 17-18.
The court determined that “the ALJ did not adequately justify his decision to discount
Dr. Aston’s opinions, and he did not identify and apply the pertinent regulatory factors, as
required under 20 C.F.R. § 404.1527.” Dkt. 15, at 2. The court recognized that although the
1

Naug raised a second issue before this court regarding whether she met the requirements of
a listed disability. But Naug conceded the issue during oral argument, recognizing that the
Commissioner’s position on that issue was substantially justified.
2

Record cites are to the administrative record, located at Dkt. 7.

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ALJ articulated several sound reasons for declining to afford Dr. Aston’s opinions greater
weight, the ALJ “overlooked one crucial fact: Dr. Aston identified the first (and only) piece of
objective medical evidence in the record that corroborated Naug’s subjective complaints.” Id.
The court was critical of the ALJ’s quick dismissal of Dr. Aston’s opinions simply because
supporting test results were absent from the record, without recognizing the significance of
the fact that objective test results did, in fact, support Dr. Aston’s opinions. The court
expressed its concern that the ALJ had “glossed over the only medical opinion evidence in the
record that was based on objective medical evidence without sufficient consideration or
explanation” and ultimately concluded that “[b]ecause the ALJ effectively disregarded
important corroborating evidence, his reasons for affording Dr. Aston’s opinions lesser weight
were not sound.” Id. at 3.
During oral argument, the court acknowledged that the issue was a fairly close call,
because the ALJ had articulated some good reasons for discounting Dr. Aston’s opinions. The
closeness of the question is evidence that the Commissioner’s position was substantially
justified. See Cummings v. Sullivan, 950 F.2d 492, 498 (7th Cir. 1991) (“We find that the
closeness of the question is, in itself, evidence of substantial justification.”). This is not, for
example, a case in which the ALJ completely failed to consider a treating physician’s report,
cf. Henderson v. Barnhart, 257 F. Supp. 2d 1163, 1168 (E.D. Wis. 2002), or a case where the
ALJ failed to cite any medical evidence in support of his findings, cf. Samuel v. Barnhart, 316
F. Supp. 2d 768, 771 (E.D. Wis. 2004) (the ALJ failed “to include in his narrative discussion
a description of how the medical evidence supported his finding”). This is a case in which the
ALJ recognized and attempted to apply the pertinent regulatory factors when evaluating Dr.
Aston’s opinions but simply failed to address a piece of important objective evidence. The

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court concludes that the Commissioner’s position was reasonably based in law and fact and,
thus, substantially justified. See, e.g., Grieves v. Astrue, 360 F. App’x 672, 675-76 (7th Cir.
2010) (holding that the district court did not abuse its discretion when it denied EAJA fees
because the Commissioner’s position was substantially justified: the ALJ’s reasons for
discounting treating physician opinions were “flawed and inadequate,” but an insufficient
explanation “in no way necessitates a finding that the government’s position was not
substantially justified” (internal citations and quotation marks omitted)). The court will deny
Naug’s motions for fees.
Even if the court were to award Naug EAJA fees, the court would not award the
requested $855.89 in supplemental fees (for having to reply to the Commissioner’s
opposition to Naug’s first motion, see Dkt. 23). Although the second motion states that
Naug’s attorney’s affidavit supports the award, Naug’s attorney filed no such affidavit.
Without a supporting affidavit and an itemized statement, the court is unable to verify that
Naug’s attorney is entitled to the supplemental fees.
One more point in closing. The court is compelled, yet again, to admonish Mr.
Duncan for his careless mistakes. Naug’s memorandum in support of EAJA fees states that
“the parties stipulated to a sentence four remand.” Dkt. 21, at 3. This is incorrect. The court
remanded this case after hearing oral argument; there was no stipulation. Naug’s counsel also
states that this case went up to the Seventh Circuit, which required counsel “to write a
second series of briefs and travel to and from Chicago for oral arguments[,]” effectively
“doubling” his work on this case. Id. at 4. This, too, is simply incorrect. It appears that
Naug’s briefing was produced by the sloppy copy-and-paste method the court has come to
expect from Mr. Duncan and his one-attorney firm. And, on top of the factual inaccuracies,

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Mr. Duncan initially filed his motion papers in the wrong case. He eventually corrected the
filing problem, but only after the clerk’s office alerted him to the mistake. (This was a
courtesy; it is not the responsibility of the clerk’s office’s to correct filing mistakes.) These
mistakes waste time for the court and the Commissioner, and the court has imposed
sanctions on Mr. Duncan for such errors before. To be clear: Mr. Duncan’s errors are not the
reason that the court is denying Naug’s request for fees. But it must be said that Mr.
Duncan’s carelessness undermines the image of competence and expertise that Mr. Duncan
hopes to project. This court greatly appreciates Mr. Duncan’s work for a client population
that is greatly under served, but we are approaching the point at which Mr. Duncan’s errors
will severely disadvantage his clients. Mr. Duncan must clean up his act.

ORDER
IT IS ORDERED that:
1. Plaintiff Lisa Naug’s motion for attorney fees in the amount of $6,671.84,
Dkt. 17, is DENIED.
2. Plaintiff’s second motion for attorney fees in the amount of $855.89, Dkt. 23, is
DENIED.
Entered April 4, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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