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Weiskopf v. Colvin

United States District Court, D. Arizona

January 24, 2018

Stella Weiskopf, Plaintiff,
v.
Carolyn W. Colvin, Commissioner of the Social Security Administration, Defendant.

          ORDER

          Michelle H. Bums United States Magistrate Judge

         Pending before the Court is Plaintiff Stella Weiskopf's application for attorney's fees under the Equal Access to Justice Act (“EAJA”) (Doc. 47). After reviewing the arguments of the parties, the Court now issues the following ruling.

         On October 14, 2010, Plaintiff filed an application for disability insurance benefits and supplemental security income alleging disability beginning March 6, 2009. Plaintiff's claims were denied initially and on reconsideration. Thereafter, Plaintiff requested a hearing before an administrative law judge, and a hearing was held on April 9, 2012. Afterwards, the ALJ issued a decision finding that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff then sought judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         This Court, after reviewing the administrative record and the arguments of the parties, affirmed the decision of the ALJ, finding that: (1) the ALJ properly weighed the medical source opinion evidence; and (2) the ALJ provided a sufficient basis to find Plaintiff's allegations not credible. Thereafter, Plaintiff appealed the Court's decision to the Ninth Circuit Court of Appeals.

         On August 4, 2017, the Ninth Circuit issued its Mandate, finding that the ALJ's decision was not supported by substantial evidence, and remanding this matter back to the district court with instructions to remand to the Commissioner for further proceedings. Specifically, the court found, as follows:

The ALJ did not set forth clear, specific and legitimate reasons for rejecting the medical opinions of Appellant's treating pain management specialist and treating neurologist in determining Appellant's ability to do work-related activities. These two treating physicians provided opinions of her functional capacity. The ALJ rejected both opinions, assigning one of them “little weight” and the other “limited weight.” But she failed to provide specific and legitimate reasons for doing so. See Orn, 495 F.3d at 632 (“Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record.” (quoting Redding v. Chater, 157 F.3d 715, 725 (9th Cir. 1998))). The ALJ recited portions of treating physicians' treatment notes and then simply stated their opinions of Weiskopf's functional capacity were inconsistent with the notes. The ALJ failed to explain why the conclusion she drew from the treatment notes-that Weiskopf can perform limited, sedentary work-makes any more sense than the treating physicians' conclusions. ...
The ALJ thus did not sufficiently explained why the treating physicians' opinions did not deserve “controlling weight, ” and further, she completely failed to explain why the opinions merited only “little” and “limited” weight. Even when there is substantial evidence contradicting a treating physician's opinion such that it is no longer entitled to controlling weight, the opinion is nevertheless “entitled to deference.” Orn, 495 F.3d at 633 (quoting SSR 96-2P, at *4). To determine the amount of deference, the opinion “must be weighed using all of the factors provided in 20 C.F.R. [§] 404.1527.” SSR 96-2P, at *4. These factors include, among others, the length of the treatment relationship, frequency of examination, and the nature and extent of the treatment relationship. 20 C.F.R. § 404.1527(c). The ALJ did not engage in this analysis.
Furthermore, the ALJ did not properly analyze Weiskopf's evidence of fibromyalgia. The ALJ did not consider fibromyalgia when determining Weiskopf's residual functional capacity, even though she was supposed to consider all medically determinable impairments (MDIs) - even those that are not severe. See 20 C.F.R. § 404.1545 (“We will consider all of your medically determinable impairments of which we are aware, including your medically determinable impairments that are not ‘severe, ' as explained in §§ 404.1520(c), 404.1521, and 404.1523, when we assess your residual functional capacity.”). The ALJ explained that she refused to do so because “examinations d[id] not reveal any trigger point tenderness.” This analysis was at odds with Social Security Ruling 12-2P. The ruling describes two ways that fibromyalgia may be determined to be an MDI, only one of which requires trigger point tenderness. The ALJ ignored the second possible basis for finding that a claimant has an MDI of fibromyalgia:
1) A history of widespread pain . . .; 2) Repeated manifestations of six or more FM symptoms, signs, or cooccurring conditions especially manifestations of fatigue, cognitive or memory problems (“fibro fog”), waking unrefreshed, depression, anxiety disorder, or irritable bowel syndrome; and 3) Evidence that other disorders that could cause these repeated manifestations of symptoms, signs, or co-occurring conditions were excluded.

SSR 12-2P, at *3. She therefore failed to adequately explain why she did not consider Weiskopf's fibromyalgia in her residual functional capacity determination.

         The EAJA allows “a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... unless the court finds 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). An applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of whether disability benefits are ultimately awarded. See Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993).

         The “position of the United States” includes both its litigating position 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). For this position to be substantially justified, it must be “justified in substance or in the main - that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (holding that substantially justified means having a reasonable basis both in law and fact). In EAJA actions, the government bears the burden of proving that its position was substantially justified. See Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). However, “the government's failure to prevail does not raise a presumption that its position was not substantially justified.” Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).

         When analyzing the government's position for substantial justification, the Court's inquiry should be focused on the issue that was the basis for remand and not the merits of Plaintiff's claim in its entirety or the ultimate disability determination. See Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (“The government's position must be substantially justified at each stage of the proceedings.”).

         Plaintiff moves for an award of attorney's fees and expenses under the EAJA in the amount of $20, 947.58. Defendant opposes Plaintiff's request, arguing that the ...


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