Cantu v. Commissioner of Social Security

          David R. Grand, Mag. Judge.

          OPINION AND ORDER GRANTING PLAINTIFF'S PETITION FOR ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT [30]

          Judith E. Levy, United States District Judge.

         Plaintiff Rose E. Cantu filed this action against the Commissioner of Social Security challenging the Commissioner's denial of her application for Supplemental Security Income. (Dkt. 1.) On December 28, 2018, the Court received Magistrate Judge David R. Grand's Report and Recommendation recommending that Cantu's motion for summary judgment be granted in part to the extent it sought remand and denied in part to the sought it seeks an award of benefits. (Dkt. 27.) The Court agreed and adopted the Report and Recommendation in whole without objection from the parties, remanding the case for further administrative proceedings. (Dkt. 29.) Before the Court is Cantu's motion for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Dkt. 30) and Cantu's supplemental brief as to the timeliness of her petition.^[1] (Dkt. 32.) Cantu requests $6, 282.57 for less than thirty hours of attorney and less than eight hours of paralegal time. (Dkt. 30 at 8.)

         For a claimant to receive attorney fees under EAJA: “(1) she must be a prevailing party; (2) the Government's opposing position must have been without substantial justification; and (3) there must be no special circumstances that warrant denial of fees.” Riddle v. Comm'r of Soc. Sec., No. 17-10905, 2019 U.S. Dist. LEXIS 33408, slip op. at *2 (E.D. Mich. Mar. 2, 2019) (citing Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir. 1991)); Ratliff v. Comm'r of Soc. Sec., 465 Fed.Appx. 459, 460 (6th Cir. 2012). The application must also be filed within thirty days of a court's final judgment. See Townsend v. Soc. Sec. Admin., 486 F.3d 127, 129-30 (6th Cir. 2007) (citing Comm'r, INS v. Jean, 496 U.S. 154, 158 (1990)). Only reasonable attorney fees will be permitted. Glass v. Sec'y of Health & Human Servs., 822 F.2d 19, 21 (6th Cir. 1987). Cantu meets each of the three conditions, and she requests reasonable attorney fees.

         First, because the Court remanded for further agency action pursuant to sentence four of § 405(g), she is a prevailing party. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993).

         Second, the government's position, which includes “the action . . . by the agency upon which the civil action is based, ” § 2414(d)(2)(D), was without substantial justification. “[T]he relevant inquiry concerning the government's position was whether it was reasonable for the Commissioner to defend the ALJ's decision to deny benefits.” Ratliff, 465 Fed.Appx. at 460. A position is substantially justified if it is justified “to a degree that could satisfy a reasonable person” because it had a “reasonable basis in both law and fact.” Pierce v. Underwood, 487 U.S. 552, 553 (1988). The burden to show that the government's position was substantially justified rests with the government. Delong v. Comm'r of Soc. Sec. Admin., 748 F.3d 723, 725-26 (6th Cir. 2014) (citing Scarborough v. Principi, 541 U.S. 401, 414-15 (2004)). The government did not respond to Cantu's application for fees, and it has not met its burden. Jeter v. Comm'r of Soc. Sec., No. 1:18-cv-465, 2019 U.S. Dist. LEXIS 36755, slip op. at *3 (W.D. Mich. Feb. 5, 2019) (summarily finding the second factor was met where the government did not respond to the application for fees) (citing Scarborough, 541 U.S. at 414); see, e.g., Dufresne v. Colvin, No. 5:12-cv-49, 2014 U.S. Dist. LEXIS 62191, at *5 (N.D.N.Y. May 6, 20140 (“[A]s the instant motion is unopposed by Defendant, lack of substantial justification is therefore ‘impliedly admitted.'” (quoting Livingston v. Sec'y of Health & Human Servs., No. CIV-87-622E, 1989 U.S. Dist. LEXIS 19249, at *1 (W.D.N.Y. Oct. 13, 1989))).

         Even if the government had responded to Cantu's motion, it could not have shown that its position was substantially justified. The ALJ's decision lacked legal and factual support where the ALJ generally discounted the examining physician's opinion, but gave great weight to other conclusions from the same physician. The Magistrate Judge's Report and Recommendation perfectly captures this strange result,

the ALJ concluded, in relevant part, that Cantu retains the mental RFC to understand, carry out, and remember simple instructions and make simple work-related decisions; frequently interact with supervisors, coworkers, and the public; and occasionally deal with changes in a routine work setting; but would be off-task 10% of the workday. (Tr. 25). In her motion for summary judgment, Cantu argues that the ALJ's mental RFC finding is not supported by substantial evidence. (Doc. #21 at 16-20). For the reasons set forth below, the Court agrees.

The record contains no treating physician opinion as to Cantu's mental limitations. However, on August 26, 2015, Cantu underwent a consultative psychological examination with Donovan Royal, Psy.D., L.P. (Tr. 305-08). At that time, Cantu denied receiving outpatient mental health treatment, indicating that her primary care physician was prescribing Klonopin for her anxiety and depression. (Tr. 305). She reported living with her boyfriend and their two children, but indicated “she does not have any friends that she socializes with” because “she is fearful and does not like to leave her home.” (Tr. 306). On mental status examination, she was oriented to person and place but was unable to denote time. (Tr. 307). She could repeat four digits forward and two backward and could recall two of three objects after three minutes, but she named World War I, World War II, 9/11, and the Vietnam War as current events. (Id.). She was able to perform some (but not all) simple calculations by using her fingers, but declined to even attempt serial 3s or serial 7s. (Id.). Dr. Royal diagnosed Cantu with adjustment disorder with mixed anxiety and depressed mood. In his Medical Source Statement, Dr. Royal opined as follows:

[Cantu] indicated she feels “frightened and overwhelmed.” She does not like to drive or be around people and prefers to stay within her residence. Her ego strength appears to be poor. Her cognitive skills were characterized by being oriented to place and person. Short-term memory and computational skills were also poorly exhibited. Her reasoning was concrete. Her feelings of persecution of being talked about and that someone is after her seems to cause her anxiety. These personality traits would suggest that she would have a difficult time attending or completing work efficiently. Based on the claimant's presentation during today's Mental Status Evaluation, as well as, a lack of psychotherapeutic treatment beyond medication, it would suggest the prognosis for improved psychological and adaptive functioning to be limited.

(Tr. 308).

The ALJ considered Dr. Royal's opinion, giving it “partial weight overall.” (Tr. 29). Specifically, the ALJ stated: “In terms of Dr. Royal's opinion that [Cantu] would have difficulty attending and completing work efficiently, his opinion is given great weight because it is supported by the record.” (Id.). However, the ALJ gave “little weight” to Dr. Royal's conclusion that Cantu has a “limited prognosis for improved functioning” because (1) it was inconsistent with the observation that she did not present for mental health treatment; (2) Cantu exhibited “normal memory” and “was able to perform simple calculations”; (3) Cantu did not treat with a mental health provider; and (4) “her treating clinician noted normal mental status in multiple examinations[.]” (Id.). Additionally, the ALJ discounted this aspect of Dr. Royal's opinion because it was inconsistent with Cantu's “self-reported activity level.” (Id.).

To begin with, the ALJ was required to evaluate every medical opinion of record - including that of Dr. Royal, the consultative examiner - and, to the extent he rejected any of them, set forth a valid basis for doing so. See 20 C.F.R. § 416.927(c). . . . Regardless, however, “the ALJ's decision still must say enough to allow the appellate court to trace the path of his reasoning.” Stacey v. Comm'r of Soc. Sec., 451 Fed.Appx. 517, 519 (6th Cir. 2011) (internal quotation marks omitted). See also Soc. Sec. Rul. 06-03p, 2006 WL 2329939, at *6 (Aug. 9, 2006) (ALJ required to explain weight given to non-treating source opinion and “otherwise ensure that the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow [his] reasoning ….”). As described more fully below, the Court simply cannot grasp the ALJ's reasoning for discounting Dr. Royal's opinion because the reasons he articulated for doing so simply do not find support in the record

First, it is not clear how the ALJ's decision to give “great weight” to Dr. Royal's opinion that Cantu “would have a difficult time attending or completing work efficiently” squares with his conclusion that she has the RFC to perform a reduced range of simple, light work on a full-time basis. Indeed, these two findings seem incongruous. The Commissioner argues that because Dr. Royal's statement about Cantu's difficulty attending or completing tasks was “not quantified, ” it “fell to the ALJ to translate it into concrete functional terms” and that the ALJ's “10% off-task allowance reasonably reflects Dr. Royal's vague opinion ….” (Doc. #22 at 18, 19). The problem, however, is that the ALJ has provided no guidance whatsoever as to how he arrived at the 10% off task allowance, or in what way he believes that restriction to be consistent with Dr. Royal's findings and opinions. A gap in logic of this nature simply cannot be overlooked. See Rapp v. ...