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finding that the 43.3 hours plaintiff spent drafting briefs was reasonable where the central issue was the sufficiency of the ALJ's credibility assessment
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Case No. 99-C-0596
July 12, 2002
David f. Traver, for Plaintiff.
Penelope C. Fleming, for Defendant.
MEMORANDUM AND ORDER
I. PROCEDURAL BACKGROUND
Plaintiff Dolores J. Dominguese previously applied for disability insurance benefits and supplemental security income based on her fibromyalgia resulting in part from an automobile accident on July 27, 1996. After her claim for benefits was denied by an administrative law judge (ALJ) and the Commissioner of Social Security adopted the ALJ's decision, plaintiff sought judicial review pursuant to 42 U.S.C. § 405 (g). Magistrate Judge Callahan recommended that I affirm the decision of the Commissioner; however, I reversed and remanded the case to the Social Security Administration for further proceedings, Dominguese v. Massanari, 172 F. Supp.2d 1087 (E.D. Wis. 2001). Plaintiff has now moved for attorney's fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.
II. DISCUSSION
The EAJA requires the court to "award to a prevailing party . . . fees and other expenses, in addition to any costs . . . incurred by that party in any civil action brought against . . . the United States . . . unless the court find that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). There is no dispute that plaintiff is a "prevailing party" under the statute. See id. § 2412(d)(2)(B), (H). However, the parties dispute whether the position of the United States was "substantially justified" and whether the plaintiff's fees are reasonable. Thus, I address these two issues.
A. Whether the position of the United States was substantially justified
The fact that the United States did not prevail creates no presumption in favor of awarding fees, Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994); however, the government has the burden to show that "the position of the United States" was "substantially justified", Cummings v. Sullivan, 950 F.2d 492, 495 (7th Cir. 1991). "[T]he position of the United States" includes both "the position taken by the United States in the civil action, [and] the action or failure to act by the agency upon which the civil action is based." 28 U.S.C. § 2412 (d)(2)(D). Thus, I consider the government's position during the litigation before this court and the magistrate judge, and also the government's prelitigation position that led up to the litigation, such as the decisions of the Commissioner and the ALJ. Cummings, 950 F.2d at 495-96; see also Comm'r, I.N.S. v. Jean, 496 U.S. 154, 159 n. 7 (1990); Sullivan v. Hudson, 490 U.S. 877, 888 (1989). However, I make "only one threshold determination" regarding the substantial justification of the government's position "for the entire civil action." Jean, 496 U.S. at 158. Therefore, I must award fees if "the government's prelitigation conduct was not substantially justified even though its litigating position may have been substantially justified and vice versa. In other words, the fact that the government's litigating position was substantially justified does not necessarily offset prelitigation conduct that was without a reasonable basis." Marcus, 17 F.3d at 1036; see Hanrahan v. Shalala, 831 F. Supp. 1440, 1450 (E.D. Wis. 1993).
The government's position is "substantially justified" when it has a "reasonable basis both in law and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal citations and quotation marks omitted); see United States v. Hallmark Constr. Co., 200 F.3d 1076, 1078 (7th Cir. 1999);Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994). The position must be "justified in substance or in the main — that is, justified to a degree that could satisfy a reasonable person." Pierce, 487 U.S. at 565. The position need not be "justified to a high degree," but it must be "more than merely undeserving of sanctions for frivolousness." Id. at 565-66.
Looking at the Commissioner's prelitigation position, I do not find that it was substantially justified in the main. In the ALJ's own words, the core questions in the case were "pain and credibility." (R. 12. at 23.) The ALJ found that plaintiff's testimony about her pain not credible and found Dr. Tolson's opinion regarding plaintiff's pain also not credible. However, the ALJ's reasons for reaching his conclusions on these core issues were illogical and failed to take into account contradictory evidence which, if considered, might have altered the outcome of the case. Thus, the Commissioner's prelitigation position lacked a reasonable basis in fact.
In determining that plaintiff's testimony about the severity of her pain was not credible, the ALJ relied on four categories of evidence. First, the ALJ looked to plaintiff's record of doctor visits. The ALJ stated that the "frequency of [plaintiff's] visits to physicians have [sic] been intermittent at best." (R. 12 at 23.) However, the record shows that plaintiff saw one or more doctors almost every month from July 1996 until early 1998, not counting physical therapy appointments, and saw doctors at least nine times between July and December 1996. This factual evidence does not reasonably support the conclusion that plaintiff's doctor visits were either intermittent or infrequent. Moreover, the record contained no evidence about how often someone with plaintiff's asserted level of pain would be expected to see a doctor. Thus, by finding that her record of doctor visits bore adversely on her credibility, the ALJ improperly made and relied upon his own medical determination. See Herron v. Shalala, 19 F.3d 329, 334 n. 10 (7th Cir. 1994); Scivally v. Sullivan, 966 F.2d 1070, 1076 (7th Cir. 1992); Schmidt v. Sullivan, 914 F.2d 117, 118 (7th Cir. 1990).
Second, the ALJ relied on his observations of plaintiff at the thirty-nine minute hearing. He stated that he saw "no indication of pain with claimant readily pointing with her hand and sitting comfortably in the chair during the testimony" (R.12 at 21), and that "[c]laimant's demeanor at hearing did not suggest a person in the extreme pain which she has alleged, claimant moving neck rather freely and using upper extremities," (id. at 23). However, these observations did not logically call into doubt plaintiff's testimony about her limitations. Plaintiff stated that she had problems bending, lifting, reaching behind her back to zip up her clothes, reaching overhead, twisting and sitting or driving a car for more than forty minutes. The ALJ did not observe plaintiff engaging in any of these activities. The ALJ also found that plaintiff "was alert and did not appear to be desensitized by any pain medication or drugs." (R.12 at 21.) However, plaintiff never testified that she suffered from drug-induced desenstitization. Thus, although I do not doubt the accuracy of the ALJ's observations, they could not logically call into doubt the credibility of plaintiff's testimony and thus provided no reasonable factual basis for rejecting her testimony.
Third, the ALJ relied on plaintiff's testimony regarding household activities. He stated that plaintiff's "various household activities", including "making flower arrangements," "painting pots" and reading (id. at 21), "would be consistent with at least some degree of light work" (id. at 23). However, the specific activities mentioned by the ALJ require very little movement and do not appear inconsistent with plaintiff's asserted level of pain. Thus, they do not provide a reasonable basis for discrediting her testimony. In addition, the ALJ failed to mention plaintiff's other testimony indicating that she is more severely limited in performing household activities, such as her statements that she had trouble washing dishes, could only vacuum and sweep for ten minutes, had problems cooking and was unable to reach out to collect her mail. Thus, it appears that the ALJ may not have considered this testimony at all. The Commissioner's position cannot have a reasonable basis in fact if he or she may have failed to consider important contradictory evidence. Godbey v. Massanari, 2001 WL 1035205, at *3 (N.D. Ill. Sept. 4, 2001).
Finally, the ALJ relied on the fact that the plaintiff "takes no strong pain medications, at least on a regular basis." (R.12 at 25). The ALJ mentioned only Robitussin and Erythromycin, which plaintiff had taken for a respiratory infection. However, the record showed that plaintiff had also taken one or more of Hydrocone, Clonazeparn, Acetaminophen with codeine, Flexeril, Ambien and Midrin from July 1996 until the date of the hearing. The record contains no evidence indicating that these medications are not strong or why the ALJ might have concluded that plaintiff did not take them regularly. Indeed, it appears that the ALJ may not have considered these medications given that he only mentioned medications that plaintiff had taken for a short-term respiratory condition. As stated previously, the Commissioner's position has no reasonable basis in fact if she fails to consider important contradictory evidence. Godbey, 2001 WL 1035205, at *3 Thus, each basis for the ALJ's determination regarding plaintiff's credibility's lacked a reasonable basis in fact, making the ALJ's conclusion also unreasonable.
Also central to the ALJ's decision was his rejection of the opinion of plaintiff's treating source physician, Dr. Tolson. Dr. Tolson opined that plaintiff could only lift ten pounds occasionally, sit for four hours per day, stand or walk for two hours per day and was limited in reaching, handling, pushing and pulling, restrictions inconsistent with full-time light work. The ALJ found that Dr. Tolson's opinion was not supported by "hard evidence" and "not consistent with the contemporaneous progress notes." (R.12 at 22-23.) However, in most cases there will be no "hard evidence" indicating the presence or severity of plaintiff's condition, fibromyalgia. Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996). Thus, the absence of "hard evidence" in plaintiff's case provided no logical basis for rejecting Dr. Tolson's opinion. In addition, Dr. Tolson's opinion was consistent with progress notes in the record that the ALJ failed to address. Given the presumptive significance of treating source opinions in Social Security cases, see SSR 98-8p, the ALJ's reasons for rejecting Dr. Tolson's opinion here were not reasonable. Thus, the ALJ's conclusions on the pivotal issues of pain and credibility had no reasonable basis in fact, making the Commissioner's position in adopting the ALJ's decision not substantially justified.
The ALJ committed other errors as well. He failed to follow several different Social Security Rulings dictating the manner in which he should make credibility determinations, evaluate evidence of pain, determine the weight afforded the opinion of the treating source physician and assess the plaintiff's residual functional capacity to perform work in the national economy. These are discussed in more detail in my decision and order reversing and remanding the case. See Dominguese, 172 F. Supp.2d at 1096-101.
The Commissioner argues that I reversed and remanded the case primarily because the ALJ failed to meet the articulation requirement; that is, he failed to articulate that he had considered all the evidence. The Commissioner further argues that under Stein v. Sullivan, 966 F.2d 317 (7th Cir. 1992), this failure is not a ground for awarding fees under the EAJA. However, the Commissioner reads too much into Stein. Stein holds that the ALJ's failure to satisfy the articulation requirement does not "necessitate a finding [that] the Secretary's position was not substantially justified", id. at 320; but Stein does not hold that the ALJ's failure to articulate can never support a fee award, see id. Moreover, the Commissioner's position in the case before me suffered from many more problems than the position of the Commissioner in Stein. InStein, the court had remanded the case to the agency because the ALJ had failed to articulate that he had considered certain pieces of evidence.Stein v. Sullivan, 892 F.2d 43, 46-47 (7th Cir. 1989). However, in the case before me, the ALJ not only failed to articulate that he had considered all the evidence, he apparently failed to consider important pieces of contradictory evidence entirely. See Godbey, 2001 WU 1035205, at *3 (finding Stein inapplicable where ALJ completely failed to address important contradictory evidence). Moreover, the evidence that he did consider did not logically support his conclusions; thus, his decision was not based on substantial evidence. See Hubbard-Davis v. Apfel, No. 95-C-5556, 1998 WL 417595, at *2.3 (N.D. Ill. July 20, 1998) (findingStein inapplicable where the ALJ's decision was not based on substantial evidence). The Commissioner's reliance on Stein is, therefore, misplaced.
The Commissioner also argues that its position must have been reasonable because the magistrate judge agreed with the Commissioner and affirmed her decision. The Commissioner cites United States v. Paisley, 957 F.2d 1161 (4th Cir. 1992) for the proposition that Magistrate Judge Callahan's recommendation shows that the Commissioner's position was substantially justified. However, the court in Paisley went on to state that the decisions of intermediate judges are not determinative of whether the government's position was substantially justified. Id. at 1167. Thus, even under Paisley, which is not controlling precedent for me, Magistrate Judge Callahan's recommendation does not compel me to find the Commissioner's position substantially justified. For the reasons discussed above, I do not so find.
For the foregoing reasons, the Commissioner has not established that her prelitigation position was substantially justified. The Commissioner has not argued that "special circumstances make an award unjust." See 28 U.S.C. § 2412 (d)(1)(A). It follows that the plaintiff is entitled to "fees and other expenses" under the EAJA. See id.
B. Whether plaintiff's requested fees are reasonable
The EAJA defines "fees and other expenses" to include "reasonable attorney fees . . . based upon prevailing market rates for the kind and the quality of the services furnished" not to exceed "$125 per hour unless the court determines that an increase in the cost of living or a special factor . . . justifies a higher fee." Id. § 2412(d)(2)(A). Plaintiff has the burden to demonstrate the prevailing market rates and to show that a cost of living increase is warranted. Hanrahan, 831 F. Supp. at 1450. Plaintiff also has the burden to show that the number hours expended on the litigation was reasonable. Hensley v. Eckerhardt, 461 U.S. 424, 437 (1983). The reasonableness of the fee is determined by evaluating the total fee request in light of twelve factors adopted by the Supreme Court in Hensely:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.Hensley, 461 U.S. at 430 n. 3 (internal citation omitted); Blanchard v. Bergeron, 489 U.S. 87, 94 (1989). The court need only apply those factors that are relevant to the case at hand.
In deciding whether a fee request is reasonable, the court may also consider whether awarding the fees would further the purposes of the EAJA fee-shifting provision. See Hallmark Constr., 200 F.3d at 1080. The EAJA provision was enacted in part to attract private counsel to represent meritorious disability claimants. Hudson, 490 U.S. at 883. Congress was concerned that persons "may be deterred from seeking review of . . . unreasonable governmental action because of the expense involved." Id.; see Howard v. Bowen, 823 F.2d 185, 188 (7th Cir. 1987). With these principles in mind, I turn to plaintiff's fee request.
Plaintiff argues that the prevailing market rate exceeds $125 per hour. Following Hanrahan, 831 F. Supp. 1440, plaintiff has applied the Bureau of Labor Statistics "all items" Consumer Price Index for each year in which the particular services were provided to create an annual hourly rate adjusted for cost of living. Based on this calculation, plaintiff asserts that counsel's rates should be $133.74 for 1999, $138.03 for 2000, $141.65 for 2001 and $141.65 for 2002. The Commissioner does not object to plaintiff's assertion that the prevailing market rate exceeds $125 per hour and does not object to plaintiff's requested cost-of-living increases. Given that plaintiff's requested hourly rates are supported by the record and are reasonable, I will accept them.
Plaintiff has also submitted an affidavit itemizing the hours counsel spent on this case. In total, they amount to 56.3 hours — 26 hours in 1999, 24.2 in 2000, 1.3 in 2001 and 4.8 in 2002, making plaintiff's requested fees $7,531.45. Plaintiff also requests $150 in costs, to which the Commissioner has not objected. Thus, plaintiff's total fees and costs are $7,681.45.
The Commissioner argues that the fee amount is excessive. Specifically, the Commissioner argues that plaintiff's counsel spent too much time on the case, given that the case primarily addressed the issue of whether the ALJ's credibility determination was supported by substantial evidence. According to the Commissioner, the amount of time plaintiff spent drafting briefs, 43.3 hours, was unreasonable. However, plaintiff's fee request in light of the Hensley factors is reasonable and an award would further the purposes of the EAJA.
First, this case was complicated, as my twenty-three-page decision and order reversing and remanding the case demonstrates. The central issue in the case was the sufficiency of the ALJ's credibility assessment; that issue was multi-faceted and far from simple. Thus, thorough treatment by counsel required time and a close and careful analysis of the record. As discussed previously, the ALJ based his assessment of plaintiff's credibility on four categories of evidence. To explicate the errors in the ALJ's assessment, plaintiff's counsel had to address each category, find and point to contrary evidence in the record, dissect the logic of the ALJ's conclusion and, in some instances, demonstrate how the ALJ failed to comply with required Social Security regulations and rulings and caselaw. The ALJ's assessment of Dr. Tolson's credibility required similarly detailed explication and analysis. In addition, plaintiff counsel's reply briefs did not merely re-hash arguments already raised; they pinpointed specific issues raised by the Commissioner and analyzed them in light of the record and the law. This precision required close review of the briefs already submitted, the record and the law. It also required careful crafting, given the five-page limitation for reply briefs. Thus, the labor and difficulty factors weigh in favor of finding the request reasonable.
Second, plaintiff's counsel's total hours and total requested fees are not out of line with fee awards in recent Social Security cases in this circuit. See Pouska v. Apfel, No. 99-C-905, 2002 WL 1263996, at *45 (N.D. Ill. Jun. 5, 2002) (awarding $9,349.19 in fees for 66.95 hours of work); Sayles v. Barnhart, No. 00-C-7200, 2002 WL 989455, at *5 (N.D. Ill. May 14, 2002) (awarding fees for 53.5 hours of work); Schutt v. Massanari, No. 00-C-1370, 2001 WL 1155253, at *3 (N.D. Ill. Sept. 28, 2001) (awarding $7,080.60 in fees for 56.2 hours of work). Thus, the similarity factor also weighs in favor of finding the requested award reasonable.
Finally, awarding fees would further the purposes of the EAJA fee-shifting provision. The briefs plaintiff's counsel filed were detailed, well-reasoned and useful to this court in deciding the issues in this case. Plaintiff's counsel showed himself to be an effective advocate for his client. Without experienced counsel, plaintiff might not have been able to bring this action and almost certainly could not have prevailed. Thus, it furthers the purposes of the EAJA to award the fees requested. For the foregoing reasons, I find that plaintiff's requested fees are reasonable and should be awarded.
III. CONCLUSION
Because the Commissioner has not shown that her position was substantially justified and because plaintiff's requested fees and costs are reasonable, plaintiff's motion will be granted.
THEREFORE IT IS ORDERED that plaintiff's motion for attorney's fees and costs is GRANTED.