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Morris v. Saul

United States District Court, D. New Mexico

November 8, 2019

NORMA MORRIS, Plaintiff,
v.
ANDREW M. SAUL, [1] Commissioner of Social Security Administration, Defendant.

          ORDER AWARDING ATTORNEY FEES UNDER EAJA

         THIS MATTER is before the Court on Plaintiff's Motion for Attorney Fees and Costs Pursuant to the Equal Access to Justice Act (“EAJA”), with Supporting Memorandum (Doc. 31), filed on September 6, 2019. The Commissioner opposes an award of EAJA fees and argues that his position opposing Plaintiff's Motion to Remand was substantially justified. Doc. 34 at 1. Additionally, he maintains that the fees and costs requested by Plaintiff herein are unreasonable. Id. at 7-11. Having reviewed the motion and exhibits, briefs submitted by the parties, and the relevant law, the Court finds that an award of fees in the amount of $7, 539.10 is reasonable in this case.

         I. The Court will grant Plaintiff's Motion in part, because the Agency's position was not substantially justified.

         In her Motion to Remand, Plaintiff sought remand of the Commissioner's denial of her application for social security benefits, arguing that the ALJ failed: (1) to consider the opinions of her two treating physician assistants without explanation; (2) to explain his finding that her knee condition and obesity did not meet or equal Listing 1.02; (3) to explain how her obesity affected her functioning at Step Four; and (4) to conduct a function-by-function assessment of her exertional limitations. Doc. 25 at 2. The Court found in Plaintiff's favor on her first claim of error (i.e. that the ALJ failed to properly consider the opinions of her treating physician assistants) and declined to address her remaining claims, noting that they may be affected by the ALJ's treatment of the case on remand. Doc. 29 at 18.

         Plaintiff now seeks attorney fees pursuant to EAJA. “Under EAJA, a fee award is required if: (1) plaintiff is a ‘prevailing party'; (2) the position of the United States was not ‘substantially justified'; and (3) there are no special circumstances that make an award of fees unjust.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting 28 U.S.C. § 241(d)(1)(A)). The parties here disagree on the second factor: whether the position of the Commissioner was “substantially justified.” “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir 1995) (citing Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir. 1992)). The Commissioner bears the burden to establish that her position was substantially justified, both on appeal to the district court and during the underlying administrative proceedings. Hackett, 475 F.3d at 1172; see also Tomlinson v. Colvin, No. Civ. 15-699 STE, 2016 WL 5316740, at *1 (W.D. Okla. Sept. 22, 2016). “Therefore, fees should generally be awarded where the agency's underlying action was unreasonable even if the government advanced a reasonable litigation position.” Tomlinson, 2016 WL 5316740, at *1 (quoting Hackett, 475 F.3d at 1174).

         The parties and the Court agree that the ALJ here neglected to address the opinions of Ms. Sheffler and Ms. Burks, Plaintiff's treating physician assistants, in his decision. Indeed, the Commissioner conceded that it would have been “preferable for the ALJ to have explicitly addressed” these opinions. Doc. 26 at 18. Nevertheless, in response to Plaintiff's Motion to Remand, the Commissioner asserted that the ALJ had not thereby committed reversible error. Id.

         Because Plaintiff applied only for disability insurance benefits, she was required to establish disability within a small window of time, between November 6, 2014, and December 31, 2014. Doc. 29 at 2. The Commissioner insisted that neither Ms. Sheffler's nor Ms. Burks' opinion “had an effect on the outcome of the case, ” as both opinions were written more than a year and half after Plaintiff's date last insured. Id. at 16-17. The Court disagreed.

         Under Tenth Circuit law, opinions authored after the date last insured do sometimes bear on the nature and severity of a claimant's condition within the relevant period. See, e.g., Hamlin v. Barnhart, 365 F.3d 1208, 1217 (10th Cir. 2004) (holding that the ALJ erred by neglecting to discuss an RFC evaluation authored by a treating source after the claimant's date last insured, where the evaluation covered the relevant period); Baca v. Dep't of Health & Human Servs., 5 F.3d 476, 479 (10th Cir.1993) (reasoning that evidence that bears upon a plaintiff's condition after his date last insured is “pertinent evidence” which may “disclose the severity and continuity of impairments existing before the earning requirement date or may identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations as of the earning requirement date”). Even the Commissioner explained that “[o]pinions issued after the date last insured can be probative at times.” Doc. 34 at 6 (citing Hamlin, 365 F.3d 1217).

         Here, Ms. Burks' opinion was drafted well after the relevant period for purposes of Plaintiff's disability benefits. Nevertheless, the Court found that opinion to be at least potentially relevant, noting that Ms. Burks treated Plaintiff on at least two occasions during the relevant period and on one occasion shortly thereafter. Doc. 29 at 14 (citing Administrative Record[2] (“AR”) at 293). While the Court concluded that the lateness of Ms. Sheffler's opinion did not necessarily preclude its relevance to the ALJ's disability determination, it described Ms. Burks' opinion as more likely to be probative. Doc. 29 at 14. As such, the Court will focus its inquiry here on the Commissioner's position with respect to Ms. Burks' likely-more-probative opinion. If the Commissioner is unable to show substantial justification with respect to Ms. Burks' opinion, it becomes unnecessary to examine his position as to Ms. Sheffler's opinion. For the finding of no substantial justification on one issue on which remand was required entitles Plaintiff to EAJA fees. See Urias v. Berryhill, No. Civ. 16-1063 KBM, 2017 WL 4480834, at *3 (D.N.M. Oct. 5, 2017); see also Comm'r, INS v. Jean, 496 U.S. 154, 161-62 (1990) (reasoning that “EAJA . . . favors treating a case as an inclusive whole, rather than as atomized line items”); Hackett, 475 F.3d at 1173 n.1 (rejecting the notion that EAJA fees can be denied because the government prevailed on a majority of issues).

         An ALJ is tasked with evaluating every medical opinion of record and explaining why any opinions were rejected. See Martinez v. Astrue, 422 Fed.Appx. 719, 724-25 (10th Cir. 2011); Wilson v. Colvin, 541 Fed.Appx. 869, 871 (10th Cir. 2013). Here, Ms. Burks opined that it would be “difficult for [Plaintiff] to stand or sit for any period of time” and that Plaintiff's limitations would “make[] it difficult to do her ADL's as well as any physical activity or to work.” AR at 402 (emphasis added). In contrast, the ALJ's RFC permitted light work with certain limitations, including the requirement that Plaintiff be permitted to alternate between sitting and standing every 10 minutes without leaving the workstation. AR at 19. Clearly, the ALJ's RFC was at odds with and less restrictive than Ms. Burks' opinion.

         Because Ms. Burks treated Plaintiff for right knee pain within the relevant period, her opinion, albeit written after Plaintiff's date last insured, was relevant to Plaintiff's limitations during the relevant time period. See Hamlin, 365 F.3d at 1217. Notably, Ms. Burks' treatment records show more than a passing reference to problems with Plaintiff's right knee.

         Plaintiff first saw Ms. Burks in November 2014, within the relevant period, for severe pain in her right knee, which Plaintiff rated as a “10.” AR at 298. She reported to Ms. Burks that the right knee pain had been ongoing since 2009. AR at 298-99. Plaintiff described knee pain when standing and walking as well as occasions when her knee would “give way.” AR at 299. Ms. Burks referenced an x-ray and MRI of Plaintiff's right knee, which indicated moderate osteoarthritis in all three compartments. AR at 299. She saw Plaintiff again in December 2014, also within the relevant period, when Plaintiff requested another injection in her knee. AR at 297. At that time, Plaintiff reported that the previous knee injection had not alleviated her pain and that, earlier that month, her knee “locked out, ” with several hours passing before she could resume bending her knee. AR at 297. Ms. Burks found tenderness over Plaintiff's medial joint line and posterior medial joint line. AR at 297. She assessed “[r]ight knee pain with probable meniscal injury” and referred Plaintiff for an MRI. AR at 298. Finally, in February 2015, just after Plaintiff's date last insured, Plaintiff reported to Ms. Burks that her right knee was “locking.” AR at 292. According to Ms. Burks' treatment notes, an MRI showed “moderate to advanced osteoarthritis with asymmetric join space narrowing most pronounced in the anterior lateral aspect of the joint.” AR at 292. Additionally, there were “large osteophytes seen and associated with cystic changes [and] several loose bodies intraarticularly, largest ones adjacent to the tibial spines.” AR at 292-93. There was “architectural distortion involving the ACL and MCL and a diffuse surface tear of the lateral meniscus anterior horn and body junction.” AR at 293. The MRI showed “advanced maceration, degeneration and tearing of the lateral meniscus, ” and, finally, the patellafemoral joint showed “advanced denudation of the articular cartilage over the crescent adjacent to the facets indicative of a grade IV chondromalacia patella and small effusion and findings that can be seen with synovitis as manifested by hypertrophy of the synovium.” AR at 293. Ms. Burks assessed Plaintiff with “[m]oderate to severe osteoarthritis of the right knee.” AR at 293.

         As the Court explained in its July 8, 2019 Memorandum Opinion and Order, the record contains evidence that Plaintiff suffered from ongoing right knee pain since 2009, and Ms. Burks' opinion and treatment notes suggest that knee pathology was present prior to Plaintiff's date last insured. Yet, the ALJ failed to discuss any of Plaintiff's visits with Ms. Burks, any of her findings during the relevant period, or any of her opinions. In fact, he never mentioned Ms. Burks by name. As the Court previously found, it was reversible error for the ALJ not to at least explain why he dismissed Ms. Burk's opinion. And reviewing the Commissioner's litigation position anew, the Court finds that he lacks substantial justification for the arguments advanced with respect to Ms. Burk's opinion. The Court is not persuaded by the Commissioner's attempt to justify the ALJ's omissions based upon the “strength of the record.” The ALJ effectively dismissed the opinions of Ms. Burks and, critically, his opinion did not permit the Court to follow his reasoning for doing so.

         Finally, the Commissioner argues that because Ms. Burks included new, postdate-last-insured impairments in her opinion, her opinion should have been dismissed by the ALJ. But this justification for the ALJ's rejection of Ms. Burks' opinions is equally unreasonable. While the incorporation of post-date-last-insured impairments may sometimes be an adequate justification for an ALJ to discount a medical opinion, here, the ALJ offered no such justification for his rejection of Ms. Burks' opinion. The Court rejected this post hoc justification by the Commissioner in its July 8, 2019 Memorandum Opinion and Order, (Doc. 29 at 16), and it cannot now find these arguments substantially justified.

         Ultimately, the Court concludes that the agency's underlying action was unreasonable and that the Commissioner has not met his burden to show that the arguments advanced in justification of it were substantially justified. ...


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