The opinion of the court was delivered by: Stengel, J.
Before me is plaintiff Scott Reph's motion for $6,205.86 in attorney's fees and $350.00 in costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. For the following reasons, I will grant the motion.
On September 11, 2007, Reph filed concurrent applications for disability insurance benefits and supplemental security income (collectively, benefits) under Titles II and XVI of the Social Security Act (the Act). Reph's applications were denied, and he timely requested a hearing before an administrative law judge (ALJ). A hearing was held before ALJ Paula Garrety on November 12, 2009. Reph and a vocational expert testified. On December 22, 2009, the ALJ concluded that Reph was not disabled under the Act because he had the residual functioning capacity to perform medium work involving no detailed job instructions; routine, self-paced tasks; and limited contact with the general public and co-workers. The Appeals Council denied Reph's request for review on September 24, 2010, rendering the ALJ's decision the final decision of the Commissioner of Social Security (Commissioner).
On November 18, 2010, Reph filed this action under 42 U.S.C. § 405(g), seeking review of the Commissioner's final decision denying his applications for benefits. Magistrate Judge Faith Angell issued a report and recommendation (R&R) on April 12, 2012, finding no substantial evidence to support the Commissioner's decision. She recommended that Reph's case be remanded to the Commissioner for further development of the record-specifically, consideration of medical expert testimony and a current psychological evaluation-and a reevaluation of the medical evidence. The Commissioner filed no objections to the R&R. After an independent review of the record, I approved and adopted the magistrate judge's R&R and remanded the case.
The EAJA provides that "a court shall award to the 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). The Commissioner contends only that his position was substantially justified; he bears the burden of making this "strong" showing. Edge v. Schweiker, 814 F.2d 125, 128 (3d Cir. 1987).
A position is substantially justified if it is "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). "The government's position consists of both its prelitigation agency position and its litigation position." Williams v. Astrue, 600 F.3d 299, 302 (3rd Cir. 2009). "To defeat a prevailing party's application for fees, the government must establish that there is substantial justification for its position by demonstrating '(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 between the facts alleged and the legal theory advanced.'" Id. (quoting Morgan, 142 F.3d at 684).
In making this determination, I am mindful that "the EAJA is not a 'loser pays' statute. [A] court cannot assume that the government's position was not substantially justified simply because the government lost on the merits." Morgan, 142 F.3d at 685. Rather, I must "make a single global determination 'from the totality of the circumstances, whether the government acted reasonably in causing the litigation or in taking a stance during the litigation.'" Jones v. Astrue, CIV.A. 10-4194, 2012 WL 2849273, at *5 (E.D. Pa. July 11, 2012) (quoting Williams, 600 F.3d at 302).
A. Substantial Justification
The government contends its position was substantially justified because the magistrate judge's recommendation to remand was based principally on contradictory evidence regarding Reph's mental health. The government observes that the magistrate judge did not explicitly note any analytical errors in the ALJ's decision. While this is true, implicit in the magistrate judge's R&R was a finding that the ALJ erred in interpreting and largely discounting contradictory evidence from Reph's treating sources supportive of his claim. For this reason, I conclude that the government's position was not substantially justified and that Reph is entitled to fees.
As in an initial matter, it does not necessarily follow that the government's position was substantially justified "merely because [it] adduces 'some evidence' in support of its position." Edge, 814 F.2d at 128; e.g., Ortiz v. Chater, 95 CV 3126 ERK, 1997 WL 50217, at *3 (E.D.N.Y. Jan. 30, 1997) ("[T]he fact that there is some evidence in the record that supports an ALJ's decision will not necessarily lead to a finding that the Commissioner's position was substantially justified."). What matters is how the ALJ (and the government in litigating the case) evaluated the evidence. Cotter v. Harris, 642 F.2d 700, 704-07 (3d Cir. 1981).
In this Circuit, "[t]reating physicians' reports should be accorded great weight, especially 'when their opinions reflect expert judgment based on a continuing observation of the patient's condition over a prolonged period of time.'" Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)); see also Brownawell v. Comm'r Of Soc. Sec., 554 F.3d 352, 357 (3d Cir. 2008) ("[A] longtime treating physician's opinion carries greater weight than that of a non-examining consultant."). Moreover, ALJs are required to distinguish ...