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Ransom-Freeman v. Berryhill

United States District Court, E.D. Pennsylvania

April 30, 2018

MAYA RANSOM-FREEMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER REGARDING ATTORNEY'S FEES AND COSTS

          HON. RICHARD A. LLORET U.S. Magistrate Judge.

         I. Entitlement to Fees and Costs Under EAJA.

         Maya Ransom-Freeman has filed a motion requesting attorney's fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), codified at 28 United States Code, Section 2412(d). Ms. Freeman filed an appeal of the denial of her claim for disability pursuant to 42 U.S.C. §§ 405(g), seeking review of the final decision of the Acting Commissioner of Social Security denying her application for Social Security Disability Insurance (“SSDIB”) under Titles II and XVI of the Social Security Act. 42 U.S.C. §§ 401 et seq. and 1381 et seq. On November 30, 2017, this Court filed a Memorandum Opinion remanding this case to the Administrative Law Judge (“ALJ”) with instructions to review the case in light of this Court's findings.

         My ruling included my finding that the ALJ failed to address significant evidence in the record that contradicted the evidence upon which the ALJ based his findings, and a finding that the ALJ mischaracterized portions of the record, and used those mischaracterizations to support his finding. Because of those errors, I was unable to conduct a meaningful review of the ALJ's opinion. I also found that these errors were not harmless: there was significant evidence in the record of the “paragraph B” criteria, which may permit a reasonable factfinder to conclude that Freeman meets the requirements of Listing 12.04. Alternatively, I found that significant evidence in the record may permit a factfinder to determine that Freeman is disabled, at step five.

         Plaintiff contends that these findings mean that she is the prevailing party in this matter, and allow her to collect attorney's fees and costs pursuant to EAJA. Plaintiff claims costs in the amount of $504.75, and a total of 84.1 hours of attorney time, at a rate of $168.62 per hour.

         The Commissioner responds that no fees should be awarded pursuant to EAJA, because the government's position was “substantially justified.” Dkt. No. 28, pp. 1-15. I disagree.

         Plaintiff is entitled to “fees and other 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.” Williams v. Astrue, 600 F.3d 299, 301-02 (3d Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)). “Substantially justified, ” under EAJA, means “justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.” Id. at 301-02 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The government must demonstrate “(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. at 302 (quoting Morgan v. Perry, 142 F.3d 670, 684 (3d Cir. 1998) (citing Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993)).

The EAJA is not a “loser pays” statute. Thus, a court cannot assume that the government's position was not substantially justified simply because the government lost on the merits. “[T]he inquiry into reasonableness for EAJA purposes may not be collapsed into [the] antecedent evaluation of the merits, for EAJA sets forth a distinct legal standard.” Cooper v. United States Railroad Retirement Board, 24 F.3d 1414, 1416 (D.C.Cir.1994).

Morgan, 142 F.3d at 685.

         In Williams, the court of appeals upheld the district court's denial of attorney's fees, where the basis of remand was a single “inconsequential” legal error that would likely be remedied on remand without changing the ultimate outcome. Williams, 600 F.3d at 302. By contrast, in this case the ALJ's opinion was “riddled with errors.” Xayaseng v. Barnhart, 2006 WL 891177, at *1 (E.D.Pa. 2006) (rejecting the argument that the Commissioner's position was substantially justified). It seems unlikely that, properly considered, this case would result in a denial of benefits. Perhaps the best indicator of whether the Commissioner's position is substantially justified is the decision and rationale on the merits. See Bryan v. Commissioner of Social Sec., 478 Fed.Appx. 747, 750, 2012 WL 1354517, at *2 (3d Cir. 2012) (“The most powerful indicator of the reasonableness of an ultimately rejected position is a decision on the merits and the rationale which supports that decision.”) (quoting Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir.1995)).

         As my Memorandum explains in detail, the ALJ made numerous, serious, prejudicial errors in a case where the evidence appears to warrant a finding that plaintiff meets a listing. This was not a case where the legal standards were unclear or rarely encountered, or the adverse evidence slender or murky. This was a case where the ALJ arrived at a result without complying with well-known legal standards and without considering substantial, often overwhelming evidence contradicting his conclusions.

         The Commissioner's position fails to satisfy all three elements identified in Williams:

         “(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.” Williams, 600 F.3d at 302. The errors culminated in an entirely unsatisfactory hearing.[1] Some of the other errors identified in the Memorandum include:

• failing to consider the Claimant's actual history with medications (Dkt. No. 22 at p. 37)
• failing to determine if medication actually controlled Claimant's symptoms (Id. at 37)
• failing to determine whether “good reasons” justified Claimant's periodic medication lapses (Id. at 37)
• failing to deal with substantial evidence that Freeman meets 3 of the 4 “B” criteria under Listing § 12.04(B) (1), (2) and (3) (Id. at 47)
• “cherry-picking” GAF scores and insisting that good GAF scores were attained without psychiatric treatment (Id. at 49-50)
• Concluding that Freeman is non-compliant with treatment without considering other explanations, as required in the Social Security Administration's regulations (Id. at 50-51)

         In light of these fundamental failures, the Commissioner's position was not substantially justified. The Commissioner repeatedly relies upon the Third Circuit's opinion in Johnson v. Comm'r. of Soc. Sec, 529 F.3d 198, 203-04 (3d Cir. 2008) for the proposition that their position was substantially justified because an ALJ is not required to discuss every piece of evidence in the record. Dkt. No. 28, pp. 6, 12. True enough, but where the ALJ wholesale ignores evidence that contradicts his findings, and those findings themselves are based, at least in part, on a mischaracterization of the evidence upon which the ALJ does rely, the Commissioner cannot merely parse snippets of the record in an effort to stand up an unsupported decision. The legal requirements that the ALJ base his or her decision on substantial evidence (not mischaracterizations of evidence), consider contradictory evidence, and do both in such a way that a court can exercise meaningful review, are basic and well known. This Court's Memorandum described the opinion's shortcomings in detail:

         Two findings undergird the ALJ's opinion: that Freeman failed to attend psychotherapy and willfully failed to comply with her medication regime. The ALJ made the following conclusory statement just prior to concluding that his RFC assessment is supported by medical evidence, and therefore Claimant is ...


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