Opinion
Case No. CIV-17-1122-R
09-24-2018
KARLA M. VILLAREAL, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
SUPPLEMENTAL REPORT AND RECOMMENDATION
Before the Court is Plaintiff's Application and Supplemental Application for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412. Doc. Nos. 28, 31. Specifically, Plaintiff seeks an award of attorney's fees in the amount of $8,643.50. Doc. No. 31 at 1. Defendant objects to any award of attorney's fees because, she argues, the government's position was substantially justified. Doc. No. 29. The matter has been referred to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. §636(b)(1)(B). For the following reasons, it is recommended Plaintiff's Applications be granted.
An award of attorney's fees is not appropriate if "the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A). "Substantially justified" means "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) (quotations omitted). The government's position could be substantially justified even if it is incorrect. Id. at 566 n.2. "The burden rests with the government to prove that it was substantially justified in arguing that the denial of benefits was supported by substantial evidence." Kemp v. Bowen, 822 F.2d 966, 967 (10th Cir.1987). The government has not satisfied its burden in this case.
The Court reversed the Commissioner's decision denying Plaintiff's application for disability insurance benefits based on the finding that the ALJ failed to properly weigh the opinion of Plaintiff's treating physician, Dr. Daisy Matias. Doc. No. 24 ("Order") at 3-4. As previously explained by the Court, while the ALJ referenced portions of Dr. Matias's records, he did not identify Dr. Matias as the subject physician. AR 62. The only direct reference the ALJ made to Dr. Matias appears much later in the decision, stating:
Upon answering the Complaint in this matter, Defendant filed the administrative record, see Doc. No. 11, referred to herein as "AR." --------
[The letter dated September 14, 2016, from Dr. Matias], the claimant's treating physician, cannot be given any weight. The opinion is clearly based on the claimant's report to her doctor of her limitations. Furthermore, the doctor makes no attempt to determine what limitations would reasonably result from her conditions.AR 65.
In defending the decision, the Commissioner argued that the ALJ's conclusion regarding Dr. Matias's opinion "was reasonable" because Dr. Matias's records "repeatedly showed normal musculoskeletal findings." Doc. No. 19 at 7. However, as the Commissioner was well aware when asserting this position, an ALJ's evaluation of a treating physician's opinion is not based on a reasonableness standard. Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003). Instead, the ALJ must follow a specific procedure in analyzing the medical opinion of a treating physician, generally giving the opinion of an acceptable treating source controlling weight if it is both well-supported by medically acceptable clinical and laboratory diagnostic techniques and consistent with other substantial evidence in the record. Id. at 1300 (citing SSR 96-2p, 1996 WL 374188, at *2). "[I]f the opinion is deficient in either of these respects, then it is not entitled to controlling weight." Id.
"Treating source medical opinions not entitled to controlling weight 'are still entitled to deference' and must be evaluated in light of the factors in the relevant regulations, 20 C.F.R. §§ 404.1527 and 416.927." Newbold v. Colvin, 718 F.3d. 1257, 1265 (10th Cir. 2013) (quoting Watkins, 350 F.3d at 1300). Those factors are:
(1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship, including the treatment provided and the kind of examination or testing performed; (3) the degree to which the physician's opinion is supported by relevant evidence; (4) consistency between the opinion and the record as a whole; (5) whether or not the physician is a specialist in the
area upon which an opinion is rendered; and (6) other factors brought to the ALJ's attention which tend to support or contradict the opinion.Watkins, 350 F.3d at 1301 (quotations omitted). See 20 C.F.R. §§ 404.1527(d), 416.927(d). The ALJ "must give good reasons . . . for the weight assigned to a treating physician's opinion" that are "sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Watkins, 350 F.3d at 1300 (quotations omitted).
"[I]f the ALJ rejects the opinion completely, he must then give specific, legitimate reasons for doing so." Id. at 1301 (quotations omitted). "In choosing to reject the treating physician's assessment, an ALJ may not make speculative inferences from medical reports and may reject a treating physician's opinion outright only on the basis of contradictory medical evidence and not due to his or her own credibility judgments, speculation or lay opinion." McGoffin v. Barnhart, 288 F.3d 1248, 1252 (10th Cir. 2002) (emphasis and quotation omitted).
In her Response Brief, the Commissioner cited to various records supporting the ALJ's decision. However, as explained by the Court, the ALJ never cited those same records, nor any records, as a basis for his rejection of Dr. Matias's opinion. Order at 3-4. Thus, the Commissioner's argument constituted prohibited post-hoc rationalizations of what the ALJ might have meant by the conclusory statements in his written decision. See Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) ("[T]his court may not create or adopt post-hoc rationalizations to support the ALJ's decision that are not apparent from the ALJ's decision itself.").
Further, in her objection to Plaintiff's request for fees, the Commissioner argues that the Court's Order reversing the ALJ's decision essentially required the ALJ to cite to each element relevant to the weighing of a treating physician's opinion, in contrast to well established case law that such exhaustive analysis is unnecessary. Doc. No. 29 at 7 n.2. The Commissioner's assertion in this regard is remarkable in light of the fact that the ALJ did not discuss any element relevant to weighing a treating physician opinion. As explained by the Court,
although an administrative law judge is not required to specifically cite to each element of the test for weighing expert opinions, here the administrative law judge made no attempt to tie his rejection of Dr. Mattias' opinion to her treatment records. See also Cook v. Astrue, 554 F. Supp. 2d 1241, 1246-47 (D. Kan. 2008); see also Garcia v. Barnhart, 188 F. App'x 760, 764 (10th Cir. 2006) (unpublished) ("This court has made it clear that when an ALJ rejects a medical opinion . . . based on his speculation that the doctor was unduly swayed by a patient's subjective complaints, the ALJ deviates from [the] correct legal standards and his decision is not supported by substantial evidence") (citation omitted); Johnson v. Berryhill, No. 16-cv-3050-WJM, 2018 WL 1566838, *5 (D. Colo. Mar. 30, 2018) (rejecting administrative law judge's decision concluding that treatment reports documented subjective complaints as substituting lay opinion and declining to engage in post hoc evaluation).Order at 4 (emphasis provided).
The law establishing the ALJ's obligations in considering a treating physician opinion is well established and largely unambiguous. Accordingly, the Court concludes the Commissioner's position defending a decision in which the ALJ largely, if not wholly, ignored the required analysis was not substantially justified.
As for the additional requirements for an award of attorney's fees under the Equal Access to Justice Act ("EAJA"), the Court finds Plaintiff is the prevailing party herein; Plaintiff's net worth does not and did not at the time this action was filed exceed $2,000,000; there are no special circumstances that would make an EAJA award unjust; and the amount of time expended, the hourly fees, and the total fees sought are reasonable.
RECOMMENDATION
In view of the foregoing findings, it is recommended Plaintiff's Application and Supplemental Application for Award of Attorney's Fees under the Equal Access to Justice Act (Doc. Nos. 28, 31) be GRANTED. Defendant is advised of her right to file an objection to this Supplemental Report and Recommendation with the Clerk of this Court on or before October 15th , 2018 in accordance with 28 U.S.C. § 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental Report and Recommendation would waive appellate review of the recommended ruling. Moore v. United States, 950 F.2d 656 (10th Cir. 1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendation are deemed waived.").
This Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter.
It is so ordered this 24th day of September , 2018.
/s/_________
GARY M. PURCELL
UNITED STATES MAGISTRATE JUDGE