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Kevin Valentine v. Michael J. Astrue

October 31, 2011

KEVIN VALENTINE , PLAINTIFF,
v.
MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Martin Ashman

MEMORANDUM OPINION AND ORDER

Plaintiff Kevin Valentine ("Plaintiff") brings this motion for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Defendant Michael Astrue, the Commissioner of the Social Security Administration ("Commissioner"), opposes the motion. The parties have consented to have this Court conduct any and all proceedings in this case, including entry of final judgment pursuant to 28 U.S.C. § 636(c) and N.D. Ill. R. 73.1(c). For the reasons stated below, the Court grants Plaintiff's motion.

I. Background

Plaintiff filed an application for Disability Insurance Benefits ("DIB") on April 12, 2004, alleging that he had become disabled as of June 14, 2002. After the Social Security Administration ("SSA") denied his claim, a hearing was held on July 6, 2006, following which an Administrative Law Judge ("ALJ") denied his application for benefits. The decision was unfavorable, but the Appeals Council ordered the ALJ to conduct a supplemental hearing on April 21, 2009. A second unfavorable decision was issued on June 11, 2009. After the Appeals Council denied a request for review, Plaintiff appealed the Commissioner's decision to this Court. On June 24, 2011, the Court reversed the Commissioner's decision in part and remanded for further consideration. See Valentine v. Astrue, No. 10 C 1234, 2011 WL 2518904 (N.D. Ill. June 24, 2011). Plaintiff now seeks attorney's fees under the EAJA.

II. Legal Standard

The EAJA provides that a district court may award "fees and other expenses" where (1) the claimant was a prevailing party, (2) the government's position was not substantially justified, (3) there are no special circumstances that make an award unjust, and (4) the claimant filed a timely and complete application with the district court. 28 U.S.C. § 2412(d)(1)(A); Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). The requesting party must show that the fees sought are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A position is "substantially justified if it has a reasonable basis in fact and law, and if there is a reasonable connection between the facts alleged and legal theory" propounded. Stewart, 561 F.3d at 683 (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The Commissioner bears the burden of proving that both his pre-litigation conduct, including the ALJ's decision, and his litigation position were substantially justified. Stewart, 561 F.3dat 683. Proving this requires that the government show "its position was grounded in '(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory propounded.'" Bricks, Inc. v. U.S. Env't Prot. Agency, 426 F.3d 918, 922 (7th Cir. 2005) (quoting United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000)); Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir. 2006). Under Astrue v. Ratliff, - U.S. - , 130 S.Ct. 2521 (2010), an award under the EAJA belongs to the plaintiff and can be offset to satisfy a pre-existing debt the plaintiff owes the United States ("the Government"). After the award is entered, if the Government determines that plaintiff owes no such debts, the Government will direct that the fee award and expenses be made payable to plaintiff's attorney pursuant to the EAJA assignment signed by the parties. The award for costs is also payable to plaintiff.

III. Discussion

The Court remanded the Commissioner's decision on the grounds that the ALJ incorrectly determined Plaintiff's credibility, failed to properly evaluate the opinion given by his treating physician, and failed to properly assess his residual functional capacity ("RFC"). The Commissioner argues that the ALJ's credibility position was substantially justified because he properly considered Plaintiff's complaints under the standard provided in SSR 96-7p. In its order, however, the Court noted that the ALJ had failed to consider Mr. Valentine's activities of daily living in any meaningful detail at the two administrative hearings that took place in this case. Contrary to the Commissioner's argument, the Court did not base its decision on the fact that the ALJ failed to consider all seven factors set forth in SSR 96-7p. Instead, the Court was far more concerned with the attention the ALJ had given to the record in this case and the inferences he drew from it in order to evaluate Plaintiff's credibility.

As Mr. Valentine notes, the Court used unusually strong language in rejecting the ALJ's credibility decision. In particular, the ALJ implied that Mr. Valentine had manufactured problems related to his boils by lying down before scheduled disability hearings in order to aggravate his condition. The Court stated:

By suggesting that Plaintiff intentionally brought his boils on himself by lying down when he knew a disability hearing was on the horizon, the ALJ implied that Plaintiff was not only malingering, he was also actively interfering with the integrity of the administrative processes that apply to his alleged disability. The Court finds it difficult to understand how this does not go to the heart of his credibility.

Valentine, 2011 WL 2518904, at *8. As the Court noted, the ALJ's decision in this regard rested on speculation and inferences instead of any objective evidence. The result was a seriously prejudicial finding that constituted an improper medical conclusion unsupported by the record. It is well-established that ALJs "must not succumb to the temptation to play doctor and make their own independent medical findings." Clifford v. Apfel, 227 F.3d 863, 870 (7th Cir. 2000).

Here, the ALJ compounded this error by further concluding that Mr. Valentine's physician, Dr. Dang, had performed a discogram on him. The ALJ concluded that this was a "very significant" element in the credibility finding because such a test could show that no nerve root compression existed, thereby undermining Plaintiff's credibility. As the Court noted, however, the ALJ had no basis in the record to reach such a conclusion and, once again, played doctor by making an independent medical finding. The Commissioner contends that other problems with the ALJ's findings, particularly his consideration of the medical record, were not so erroneous that they do not meet the "substantially justified" standard. Even if this were true, however, the independent medical findings the ALJ relied on in this case to assess Mr. Valentine's credibility were serious and fundamental errors that played an important part in the credibility issue. Accordingly, neither the ALJ's decision nor the Commissioner's litigation position was substantially justified.

The Commissioner further argues that the ALJ's consideration of Dr. Dang's medical opinion was substantially justified because his consideration of the treating physician's report included a number of important aspects such as Mr. Valentine's symptoms, Dr. Dang's diagnoses, and factors that precipitated pain. The Court agreed with certain parts of the Commissioner's litigation position on the treating physician issue, particularly the fact that the ALJ took note of medical evidence that worked against Dr. Dang's conclusions. The Court was troubled, however, by the fact that the ALJ relied heavily on his conclusion that Dr. Dang was a neurologist and did not have the medical specialization to assess Mr. Valentine's back pain. As the Court noted, the record provided no evidence to support any conclusion as to Dr. Dang's specialty; the medical expert thought that Dr. Dang was an anesthesiologist and denied that he was either an orthopedic surgeon or a neurosurgeon. The ALJ concluded that Dr. Dang was a neurologist and that his medical opinion was, therefore, not entitled to controlling weight.

The Commissioner now presents the results of an internet search as evidence that Dr. Dang is, in fact, a neurologist. The relevant issue, however, was the record evidence that supported the ALJ's credibility decision, not post-hearing evidence that the ALJ never considered. Courts cannot supply reasons to support an ALJ's decision that an ALJ himself did not actually rely on. Indeed, courts cannot even rely on evidence that is in a record if the ALJ overlooked it. See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996) ("[W]e cannot uphold a decision by an administrative agency . . . if, while there is enough evidence in ...


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