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Pedicini v. Colvin

United States District Court, N.D. Illinois, Eastern Division

June 18, 2014

TAMMY PEDICINI, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

MARY M. ROWLAND, Magistrate Judge.

Plaintiff Tammy Pedicini filed this action, seeking review of the Social Security Commissioner's denial of her application for disability insurance benefits. On December 5, 2013, the Court remanded the case to the Administrative Law Judge (ALJ) for further evaluation. Ms. Pedicini now seeks to recover her attorneys' fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). For the reasons set forth below, the application for fees is granted.

I. BACKGROUND

Ms. Pedicini applied for disability insurance benefits on November 16, 2009, alleging she became disabled on October 28, 2007, because of a severe injury to her foot. An ALJ denied her application in part, finding that Ms. Pedicini was not disabled prior to October 14, 2010, but was disabled after that date. On review, the Court found that the ALJ failed to adequately explain her deviant residual functional capacity assessments for the periods before and after October 14, 2010, and thus erred in determining Ms. Pedicini's disability onset date. The Court vacated the Commissioner's decisions on that basis and remanded the case for further consideration by the ALJ. Ms. Pedicini's counsel now moves for attorney's fees and costs under EAJA. Counsel seeks $9, 414.48 for 51.7 hours of work on the case (50.1 hours of attorney time at $184.88 per hour and 1.6 hours of legal assistant time at $95 per hour) as well as $16.70 in costs. (Mot. ¶ 11 & Ex. C). In his reply, Counsel supplemented his fee petition to reflect the 5.5 hours drafting the reply memorandum. (Reply 9). The Court finds these hours reasonable. Thus, Counsel seeks a total of $10, 431.32 for 57.2 hours of work on the case (55.6 hours of attorney time at $184.88 per hour and 1.6 hours of legal assistant time at $95 per hour) as well as $16.70 in costs. ( Id. ).

II. DISCUSSION

The EAJA provides that the court "shall award to a prevailing party other than the United States fees and other expenses... incurred by that party in any civil action... brought by or against the United States... unless the court finds that the position of the United States was substantially justified or that special circumstances make the award unjust." 28 U.S.C. § 2412(d)(1)(A). The EAJA provides a maximum rate of $125 per hour for attorney's fees, but permits the court to award higher fees in certain circumstances. Id. § 2412(d)(2)(A)(ii). In this case, the parties agree that Ms. Pedicini is the prevailing party, and the government does not allege any "special circumstance." The only issues before the court are (A) whether the Social Security Commissioner's position was "substantially justified, " and, if so, (B) whether the $184.88 hourly rate, which exceeds the presumptive $125 per hour statutory maximum, is warranted.

A. Substantially Justified

Although the EAJA does not define "substantial justification, " the Supreme Court has defined the term to mean "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Expanding on this definition, the Seventh Circuit explained, "Substantially justified' does not mean justified to a high degree, ' but rather has been said to be satisfied if there is a genuine dispute, ' or if reasonable people could differ as to the appropriateness of the contested action." Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992). The substantial justification standard is different than the substantial evidence standard, which is used to evaluate the merits of a claimant's request for remand. See Pierce, 487 U.S. at 568-69. Thus, a loss on the merits does not automatically constitute a lack of substantial justification. Id. at 569. The Commissioner bears the burden of proof in showing that the government's litigation position was substantially justified. Id. at 565.

It is important to note, however, that a proceeding to recover fees under EAJA "is intended to be summary.... The EAJA is meant to open the doors of the court-house to parties, not keep parties locked in the courthouse disputing fees well after the resolution of the underlying case." Sosebeee v. Astrue, 494 F.3d 583, 588 (7th Cir. 2007) (internal quotation marks omitted). The Supreme Court has admonished that a request for attorney's fees "should not result in a second major litigation." Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

In this case, the Court remanded this matter for further administrative proceedings after finding that the ALJ lacked evidentiary support for her conclusion that Ms. Pedicini's disability onset date was October 14, 2010, rather than October 28, 2007, as Ms. Pedicini alleged. The Court reasoned as follows:

The Court finds that the ALJ failed to adequately explain her deviant RFC assessments for the periods before and after October 14, 2010, and thus erred in determining onset date. The independent vocational expert in this case testified that, given the impairments that existed before and after October 14, 2010, if Ms. Pedicini had to miss three days of work per month, there would be no jobs for her in the regional economy; and, if she were off task 30 percent of the time due to pain problems and side effects of medication, there would also be no jobs available to her. (R. 82). There is ample evidence in the medical record indicating that Ms. Pedicini suffered from concentration difficulties as well as bad days owing to chronic pain both before and after October 14, 2010. (R. 843, 847, 477, 522 (concentration difficulties); R. 66, 228, 234, 236, 266-69, 278, 576, 772, 820, 846 (chronic pain)).
To the extent that the ALJ found the above-noted evidence inconsistent with other evidence indicating that Ms. Pedicini had a higher RFC in the pre-October 14, 2010 period ( e.g. notations about her "activity level" and positive effects of pain treatments), the ALJ should have sought additional evidence from Ms. Pedicini and her care providers, or sought counsel from an independent medical advisor to reconcile the discrepancy. Social Security Ruling 83-20 provides that "the established onset date must be fixed based on the facts and can never be inconsistent with the medical evidence of record." When information before the ALJ is, itself, inconsistent, "additional development may be needed to reconcile the discrepancy." Id. The ALJ failed to develop the record in this regard, despite the need to do so. Furthermore, the state agency medical consultants all stated that there was insufficient evidence to assess RFC from the period before Ms. Pedicini was last insured on December 31, 2009. Thus, the Court finds that the ALJ failed to adhere to SSR 83-20's requirement that the onset date be fully reconciled with the record.
On remand, the ALJ cannot reject Ms. Pedicini's alleged onset date and evidence in support thereof solely on that basis of evidence concerning Ms. Pedicini's ability to intermittently perform basic daily activities. The Seventh Circuit has repeatedly criticized ALJs for relying on evidence of that sort when rejecting claims of disability. Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012) ("[t]he critical differences between activities of daily living and activities in a full-time job are that a person has more flexibility in scheduling the former than the latter, can get help from other persons, and is not held to a minimum standard of performance, as she would be by an employer") (internal parenthetical omitted); Punzio v. Astrue, 630 F.3d 704, 712 (7th Cir. 2011) ("her ability to struggle through the activities of daily living does not mean that she can manage the requirements ...

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