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Kevanne A. Kirkwood v. Michael J. Astrue

July 20, 2011

KEVANNE A. KIRKWOOD,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



MEMORANDUM

On March 30, 2009, plaintiff Kevanne A. Kirkwood filed a complaint in this court seeking review of the denial of her application for Social Security disability insurance benefits ("DIB"). On August 16, 2010, this court determined that the administrative law judge ("ALJ") who heard her claim committed procedural error by failing to appoint a medical advisor as required by Social Security Regulation 83-20 ("SSR 83-20") and therefore remanded this action to the ALJ to conduct further proceedings. Plaintiff has now moved for attorney's fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412. Defendant, the Commissioner of Social Security ("the Commissioner"), opposes the motion on the grounds that its position in this case was substantially justified. For the reasons set forth below, plaintiff's motion will be denied.

I. Background

On June 23, 2005, plaintiff filed an application for DIB for impairment due to major depression and post-traumatic stress disorder ("PTSD"). She claimed an onset date of August 15, 2003. Her DIB claim was initially denied by the Social Security Administration, and then a hearing was held before an ALJ on February 6, 2007.

The evidence presented at the hearing showed that in April 2001, plaintiff began seeing Dr. Emanuel Garcia, who prescribed plaintiff medication to treat depression. Administrative Record ("Record") at 120. In April 2002, Dr. Garcia wrote a report that stated:

Ms. Kevanne Kirkwood has been under my psychiatric care for the treatment of major depression accompanied by profound anxiety. Her condition has been a severe and debilitating one, one that has resulted in an incontrovertible impairment in her ability to work, study or engage productively in relationships with others. As a consequence of her depressive illness . . . Ms. Kirkwood's sleep, concentration, energy level and capacity to meet basic obligations of daily living have been seriously compromised. . . . There is no question in my mind that Ms. Kirkwood's illness constitutes a medical disability.

Record at 123. In February 2003, plaintiff began weekly sessions with Dr. Minna Baker, a psychologist. In the spring of 2003, Dr. Baker diagnosed plaintiff with depression and PTSD. Record at 103-04.

In August 2003, the month of the claimed onset date, plaintiff traveled to Europe for slightly over a year to work on her Ph.D. dissertation. R&R at 3. In the hearing before the ALJ, plaintiff was unable to produce any medical records from the period of time she was in Europe. R&R at 3. However, she testified in the hearing that she spent ten months in Florence living with friends and received a small stipend for translation work, which she was unable to finish due to her illness. Record at 144. Plaintiff explained that while in Europe she could typically only spend a few hours working per day and had impaired mental functioning due to her disability. Record at 141--43.Plaintiff further testified that she was supposed to receive shipments ofmedication from Dr. Garcia while in Europe, but that he did not send any. Record at 172. She also told the ALJ that she did not have money to obtain medical treatment from a doctor in Europe while she was there. Record at 145. After ten months in Florence, plaintiff received a research scholarship that allowed her to travel to finish her research, but, according to her testimony, she was unable to receive treatment while traveling. Record at 143--45. Plaintiff returned to the United States in December 2004, having completed the research needed for her doctoral dissertation. Record at 22 and 104.

After returning from Europe, plaintiff was treated again by her psychologist, Dr. Baker, starting in May 2005. Dr. Baker concluded that depression and PTSD severely limited plaintiff's ability to function. On August 4, 2005, Dr. Baker reported that plaintiff "has trouble concentrating and thinking clearly, cries for hours every day, becomes easily paralyzed by any stressful occasion, and is easily overcome by anger." Record at 104.

Based on the testimony and medical records presented at the hearing, the ALJ denied plaintiff's claim, finding that no objective medical evidence supported the contention that plaintiff had an onset date for her disability before September 30, 2004, largely because plaintiff produced no medical records from her time in Europe. Record at 22. In deciding that plaintiff was not disabled between August 15, 2003, plaintiff's claimed onset date, and September 30, 2004, the ALJ did not appoint a medical advisor to help him infer an onset date. Record at 20-22. In his decision, the ALJ stated that "[w]hile [Kirkwood] did receive mental health treatment prior to her departure, there are no medical reports or treatment records covering her time abroad . . . and the evidence establishes that she did not resume therapy until after the date last insured in 2005." Record at 21. The Appeals Council denied plaintiff's request for administrative review.

Plaintiff then filed a complaint in this court, alleging that the ALJ committed various errors in denying her application for DIB. Docket No. 9. The request was referred to Magistrate Judge Jacob P. Hart, who filed a Report and Recommendation ("R&R") recommending that the ALJ's decision denying benefits be affirmed. Docket No. 14. In August 2010, I declined to the adopt the R&R and held instead that the ALJ committed procedural error by failing to appoint a medical advisor to advise on the onset date as required by SSR 83-20. Docket No. 23. I therefore remanded to the ALJ to rehear the case with the assistance of a medical advisor.

On November 11, 2010, plaintiff filed a motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, which the Commissioner opposes on the grounds that his agency's position in this case was substantially justified.

II. Discussion

Under the EAJA, a prevailing party in a litigation against the government shall be awarded "fees and expenses . . . incurred by that party . . . 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) (2006). "Substantially justified" means "'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 (1998). Stated differently, "a government position is substantially justified 'if it has a reasonable basis in both law and fact.'" Williams v. Astrue, 600 F.3d 299, 302 (3d Cir. 2009) (quoting Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993)). In general, "a legal position is substantially justified if it relates to an unsettled or close question of law, but not if it offends established precedent." Russell v. Heckler, 814 F.2d 148, 153 (3d Cir. 1987); see also Grossberg v. Barnhart, 2005 WL 703736, at *2 (3d Cir. 2005).

The government bears the burden of demonstrating that its position was substantially justified. Morgan v. Perry, 142 F.3d 670, 684 (3d Cir. 1998) (citation omitted). In order to establish that its position was substantially justified, the government must show "(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory it propounded; and (3) a reasonable connection ...


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