Debra Huber v. Michael Astrue
Opinion
NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604
Argued May 18, 2010 Decided September 30, 2010
Before
SANDRA DAY O’CONNOR, Associate Justice*
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09‐3942
DEBRA K. HUBER, Appeal from the United States District Plaintiff‐Appellant, Court for the Central District of Illinois.
v.
No. 07‐cv‐2246
MICHAEL J. ASTRUE, Defendant‐Appellee. Michael P. McCuskey, Chief Judge.
O R D E R
Debra Huber appeals from a judgment of the United States District Court for the Central District of Illinois denying her petition for an award of attorney’s fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. We find that the Commissioner of Social Security was not “substantially justified” in supporting the Administrative Law
*
The Honorable Sandra Day O’Connor, Associate Justice of the United States Supreme Court (Ret.), sitting by designation pursuant to 28 U.S.C. § 294(a).
No. 09‐3942 Page 2
Judge’s (ALJ’s) ruling in appellant’s underlying Social Security disability benefits claim, and we therefore reverse and remand for entry of an award of fees.
Based on her history of a stroke, carpal tunnel syndrome, hypertension, diabetes, asthma, a thyroid condition, and depression, Appellant Huber filed a claim with the Social Security Administration for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act. 42 U.S.C. §§ 416(I), 423, 1381a, 1382(a). After a hearing, an ALJ denied Huber’s application in March 2007, finding that she was not disabled within the meaning of the Social Security Act and that she could perform a number of jobs in the national economy. Huber then sought judicial review in the district court pursuant to 42 U.S.C. § 405(g).
Magistrate Judge David G. Bernthal issued a report and recommendation on February 2, 2009, recommending that the district court deny Huber’s motion to remand her case pursuant to 42 U.S.C. § 405(g), sentence six, which allows a remand to the agency “upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” In a second report and recommendation on February 11, 2009, however, Magistrate Judge Bernthal recommended that the district court grant Huber’s motion to remand her case pursuant to 42 U.S.C. § 405(g), sentence four (“The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”). In her motion for a § 405(g) sentence four remand, Huber argued that the ALJ erred by failing to consider the second of two reports in the record from a psychiatrist, Dr. Tin Howard, and by failing to address inconsistencies in the two reports.
Dr. Howard completed two reports about Huber on the same day: a Psychiatric Review Technique (PRT) and a Mental Residual Functional Capacity Assessment (Mental RFC). App. at 261‐78. The PRT reflects that Huber has mild limitations in (1) restriction of “daily living” activities, (2) “difficulties in maintaining social functioning,” and (3) “difficulties in maintaining concentration, persistence, or pace.” Id. at 271. The PRT also notes that Huber “has no difficulty maintaining social functioning,” “relates to others with no problems,” and has “no difficulty in maintaining concentration, persistence, or pace.” Id. at 273. In contrast, the Mental RFC Assessment describes Huber as “moderately limited” in (1) “[t]he ability to interact appropriately with the general public,” (2) “[t]he ability to accept instructions and respond appropriately to criticism from supervisors,” and (3) “[t]he ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes.” Id. at 276. The Mental RFC Assessment concludes: “There is evidence that the claimant cannot interact appropriately with the public or respond appropriately to criticism from supervisors, work with others, get along with workers and maintain socially appropriate behavior, so limit [to]
No. 09‐3942 Page 3
work tasks that do not require interaction with the general public.” Id. at 277. The Assessment further determines that Huber can, inter alia, “carry out short and simple instructions,” “sustain ordinary routine,” and “perform[] simple tasks.” Id.
In recommending the remand under § 405(g), sentence four, the magistrate judge upheld much of the ALJ’s assessment of Huber’s capacities, but did not sustain the ALJ’s assessment of Huber’s social functioning. The magistrate judge explained that the ALJ stated that she “generally agreed” with Dr. Howard’s conclusion in the PRT that Huber had “no (or mild) limitations” in social functioning. Feb. 11, 2009 Report and Recommendation (R&R) at 12. The ALJ also noted that Huber “reports good relationships with her siblings” and “no evidence of evictions, altercations, or severe social isolation.” Id. Based on the evidence just recited, the ALJ determined that Huber had only mild limitations in social functioning and concluded that Huber “was able to perform a significant number of jobs available in the national economy, including interviewer, information clerk, general office clerk, or ticket checker.” Id. at 6. The magistrate judge noted that most of these proposed jobs “appear to require interaction with the general public,” id. at 13, which Dr. Howard’s Mental RFC Assessment specifically stated that Huber should not do on account of her “moderate” limitations in social functioning. Id. The ALJ provided no explanation for rejecting the “moderate” limitations determination in the Mental RFC Assessment, which conflicted with the “mild” limitations determination in the PRT, on which the ALJ did rely. The magistrate judge found that the ALJ’s lack of explanation prevented the court from “perform[ing] a meaningful review” of the ALJ’s decision about appellant’s limitations in social functioning, and therefore recommended remanding the case for reconsideration in light of the inconsistent reports by Dr. Howard. Id. at 13. On March 3, 2009, District Judge Michael McCuskey accepted in full the reports and recommendations of the magistrate judge and granted Huber’s motion for a remand under 42 U.S.C. § 405(g), sentence four.
After the remand, Huber filed an application for attorneys’ fees under the EAJA, and the matter was assigned to the same magistrate judge. The Commissioner conceded that Huber is a prevailing party who timely filed an application for attorney’s fees,1 but argued that his position was substantially justified. See Aug. 26, 2009 R&R, at 1. The magistrate judge held that the position of the Commissioner was substantially justified, and therefore
1 Because the remand Huber obtained was under sentence four of 42 U.S.C. § 405(g), her application for fees was timely. See Shalala v. Schaefer, 509 U.S. 292, 298 & 300‐01 (1993) (holding that a sentence four remand under 42 U.S.C. § 405(g) is a final, appealable decision, and that a party who wins a remand under sentence four is a “prevailing party” for purposes of the EAJA); Melkonyan v. Sullivan, 501 U.S. 89, 102 (1991) (“In sentence four cases, the filing period [for attorney’s fees] begins after the final judgment (‘affirming, modifying, or reversing’) is entered by the court and the appeal period has run, so that the judgment is no longer appealable.”).
No. 09‐3942 Page 4
recommended that the district court deny Huber’s application for attorney’s fees. Id. at 2. In an order on October 5, 2009, the district court agreed with the magistrate judge’s recommendation and denied Huber’s motion for attorney’s fees. This appeal followed.
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