Culler v. Massanari , 9 F. App'x 839 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 22 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
THELMA I. CULLER,
Plaintiff-Appellant,
v. No. 00-3163
(D.C. No. 96-CV-4164-SAC)
LARRY G. MASSANARI, * Acting (D. Kan.)
Commissioner of Social Security,
Defendant-Appellee.
ORDER AND JUDGMENT **
Before EBEL , PORFILIO , and LUCERO , Circuit Judges.
Plaintiff appeals the district court’s denial of her application for attorney
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. In a
previous decision, the district court reversed the Commissioner’s denial of Social
*
On March 29, 2001, Larry G. Massanari became Acting Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Mr. Massanari is substituted for Kenneth S. Apfel as the
appellee in this action.
**
The case is unanimously ordered submitted without oral argument pursuant
to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
Security benefits to plaintiff and remanded the action to the Commissioner for
further proceedings. The district court determined that the administrative law
judge (“ALJ”), whose decision became the final decision of the Commissioner,
had committed three reversible errors.
First, the ALJ failed to include all of plaintiff’s impairments in his
hypothetical questions to the vocational expert (“VE”). In particular, the ALJ
failed to question the VE about plaintiff’s severe emotional and mental problems,
including her limited reading and comprehension skills. Second, the ALJ did not
follow the correct legal standards in evaluating plaintiff’s allegations of pain.
Specifically, the ALJ failed to link his findings to substantial evidence in the
record and completely omitted one of plaintiff’s impairments from his pain
analysis under Luna v. Bowen , 834 F.2d 161 (10th Cir. 1987). Finally, the ALJ
erroneously discounted the opinion of a treating physician and substituted for it
the opinion of a non-examining medical advisor.
After the district court reversed the denial of benefits, plaintiff filed an
application for attorney fees under the EAJA. The EAJA allows a prevailing
party to recover litigation costs against the United States “unless the court finds
that the position of the United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The parties
do not dispute that plaintiff qualifies as a prevailing party for EAJA purposes.
-2-
The district court nonetheless denied the fee application because it determined
that the government’s position was “substantially justified.” Id.“[T]he government bears the burden of showing that its position was
substantially justified. To do so, the government must prove that its case had a
reasonable basis in law and in fact.” Hadden v. Bowen , 851 F.2d 1266, 1267
(10th Cir. 1988) (citations omitted). “[T]he reasonableness test breaks down into
three parts: the government must show that there is a reasonable basis for the
facts alleged[;] that there exists a reasonable basis in law for the theory it
propounds; and that the facts alleged will reasonably support the legal theory
advanced.” Gatson v. Bowen , 854 F.2d 379, 380 (10th Cir. 1988) (quotations
omitted).
“In determining whether the government’s position was reasonable, the
trial judge must make a separate review of the government’s position to
determine whether it was substantially justified. The term ‘position’ includes the
government’s position both in the underlying agency action and during any
subsequent litigation.” Hadden , 851 F.2d at 1267 (citations omitted). We review
the district court’s determination that the government’s position was substantially
justified under an abuse of discretion standard. Id. at 1268. In this case, we find
dispositive the Commissioner’s failure to demonstrate a reasonable basis for the
ALJ’s omission of plaintiff’s mental and emotional impairments from his
-3-
hypothetical questions to the VE, especially the limitations on her ability to read
and comprehend.
In late April 1987, plaintiff suffered a back injury while working as a
nurse’s aide and was unable to return to work. As part of her rehabilitation
effort, plaintiff began attending junior college in 1988 to earn an associate degree
that would allow her to seek other employment. She graduated in May 1992 and
applied for many jobs in the following months, but she was unable to find
employment.
In December 1992, plaintiff filed her application for benefits, alleging she
had been disabled since May 3, 1987. After a hearing before the ALJ in October
1994, plaintiff’s counsel informed the ALJ that he wished to amend the onset
date to June 1991. Counsel reasoned that because plaintiff could not receive
back benefits under her December 1992 application for a period greater than
eighteen months, alleging an onset date earlier than June 1991 would be futile.
Plaintiff’s insured status expired on December 31, 1992.
The medical evidence showed that, at the time plaintiff applied for
disability benefits, she suffered from low back problems, varicose veins with
venous ulcers, mitral valve prolapse without cardiac disease, a history of right
urethral obstruction, urinary incontinence, asthma, and chest pain. During the
course of the hearing before the ALJ, plaintiff had difficulty comprehending
-4-
straightforward questions from the ALJ and appeared to be crying throughout
much of the hearing. These circumstances prompted the ALJ to refer plaintiff to
Dr. Whitten, a clinical psychologist, for a mental status review, intelligence
appraisal, and objective personality testing.
Dr. Whitten examined plaintiff in February 1995 and issued a report
diagnosing her with “Personality Disorder NOS [3]
with histrionic, compulsive,
self-defeating, and codependent features” and giving her a GAF 4
score of 45
because “[e]motional issues and personality structure cause serious interference
in social and occupational functioning and in marital relationships.” (II
Appellant’s App. at 327.) Dr. Whitten’s testing also revealed that plaintiff had
only a sixth grade level of word pronunciation and was not able to recognize the
3
“NOS” stands for “Not Otherwise Specified.” American Psychiatric Ass’n,
Diagnostic & Statistical Manual of Mental Disorders 4 (4th ed. 1994). The
category of Personality Disorder NOS “is for disorders of personality functioning
that do not meet criteria for any specific Personality Disorder. An example is the
presence of features of more than one specific Personality Disorder that do not
meet the full criteria for any one Personality Disorder (‘mixed personality’), but
that together cause clinically significant distress or impairment in one or more
important areas of functioning (e.g., social or occupational).” Id. at 673.
4
“GAF” stands for “Global Assessment of Functioning,” and reflects “the
clinician’s judgment of the individual’s overall level of functioning.” Id. at 30.
GAF scores range from 0 to 100. A GAF score of 45 reflects that the individual
has either “[s]erious symptoms . . . OR any serious impairment in social,
occupational, or school functioning.” Id. at 32.
-5-
words she mispronounced. Dr. Whitten concluded that she was “possibly
significantly limited in reading and reading comprehension.” (Id. at 326.) 5
At the October 1994 hearing, the ALJ received testimony from plaintiff,
from a medical advisor, and from a VE. Because the ALJ had not yet received
Dr. Whitten’s report, his questions to the VE did not include any of the mental or
emotional limitations recited in that report. Even after receiving Dr. Whitten’s
report detailing those limitations, however, the ALJ did not pose additional
questions to the VE or order a supplemental hearing. Instead, he simply held that
he could not consider her mental and emotional impairments because “claimant’s
emotional problems, which are now fairly severe, did not manifest themselves
until after December 31, 1992, the date that she last met the insured requirements
of the Social Security Act.” ( Id. at 20.) Based on the VE’s testimony that
plaintiff could perform the job of medical receptionist for a hospital, initial
review clerk for an insurance company, or appointment clerk for a medical office
or hospital, the ALJ concluded at step five of the sequential analysis that plaintiff
was not disabled.
The district court determined that the ALJ’s finding that plaintiff’s
emotional and mental limitations did not manifest themselves until after
5
Dr. Whitten also found plaintiff to be deficient in mental arithmetic,
“making many errors in calculation at fairly simple levels.” (II Appellant’s App.
at 325.)
-6-
December 1992 was not supported by substantial evidence. The court noted
references to similar emotional problems in the evidence that predated December
1992 and also determined there was no basis for concluding that plaintiff’s
limited reading and comprehension difficulties arose only after that date. 6
Because the ALJ did not include this “fairly severe” impairment in his questions
to the VE, the district court concluded that the VE’s testimony could not
constitute substantial evidence to support the ALJ’s determination that there were
other jobs in the national economy that plaintiff could perform despite her
impairments.
In his merits brief, the Commissioner attempted to defend the ALJ’s
omission of plaintiff’s mental and emotional limitations from his questions to the
VE on the following grounds: (1) neither plaintiff’s work nor her medical
records established that her emotional problems were disabling prior to December
1992; (2) plaintiff did not allege any mental or emotional problems in her
application, she sought no treatment for them, and she did not complain of them
to physicians who treated her during the relevant period; (3) plaintiff attended
junior college during the relevant period and was on the Honor Roll six out of
eight semesters; and (4) although there were references in the pre-December 1992
6
The same would undoubtedly be true of plaintiff’s mental arithmetic
deficiencies, but the district court did not mention those in it merits decision.
-7-
medical records to plaintiff’s crying or being on the verge of crying, when the
ALJ asked plaintiff about her tears during the hearing she said she had a runny
nose and watery eyes due to allergies.
Based on our review of the record, we conclude that the Commissioner's
arguments do not establish that his position was substantially justified. First, the
law does not require that plaintiff’s mental and emotional impairments be
disabling to warrant inclusion in the ALJ’s hypothetical questions to the VE; it
requires only that they be severe , i.e., significantly limit her ability to do basic
work activities. See 20 C.F.R. § 404.1520(c) (defining a severe impairment);
Hargis v. Sullivan , 945 F.2d 1482, 1492 (10th Cir. 1991) (“Testimony elicited by
hypothetical questions that do not relate with precision all of a claimant's
impairments cannot constitute substantial evidence to support the Secretary’s
decision.” (quotation omitted)); Evans v. Chater , 55 F.3d 530, 532 (10th Cir.
1995) (noting “established rule that such inquiries must include all (and only)
those impairments borne out by the evidentiary record”).
Second, plaintiff’s failure to complain of mental or emotional problems or
to seek treatment for them is entirely consistent with Dr. Whitten’s assessment.
Dr. Whitten reported: “What I think are diagnosable amounts of personality
disorder are outside of her conscious awareness.” (II Appellant’s App. at 324.)
He also stated that plaintiff was poorly in touch with her own needs and feelings
-8-
and that she would “tend to deny any psychological basis for her problems.” ( Id.
at 326.)
Third, plaintiff’s college attendance and performance are not inconsistent
with Dr. Whitten’s report. Plaintiff testified that she began studying for her
associate degree in the spring of 1988, and the evidence shows that she obtained
her degree in May of 1992. It took her approximately four years to complete the
two-year course for an associate degree even though that was the only activity in
which she was engaged. She told Dr. Whitten that “she had to study for hours to
make good grades on the college courses most of which had to do with computer
operation or typing,” and she testified at the hearing that she worked very hard in
school, studying late into the night and on weekends. ( Id. at 323.) These facts
are all consistent with Dr. Whitten’s opinion that plaintiff is “possibly
significantly limited in reading and reading comprehension and tries to
compensate for limitations with excessive amounts of work.” ( Id. at 326.)
Finally, plaintiff’s attempt to explain away her tears at the hearing as being
due largely to allergies is also consistent with Dr. Whitten’s observations about
her tendency to “deny all upsetting emotions.” ( Id. at 323.) Moreover, her
explanation that she was merely suffering from allergies is belied by other
physicians’ reports that she was crying or on the verge thereof.
-9-
In his brief regarding the application for fees, the Commissioner argues the
district court failed to mention that Dr. Whitten did not examine plaintiff until
more than two years after the expiration of her insured status and that his report
made no attempt to provide a retrospective diagnosis. While those two facts are
true, there is no indication that the district court ignored them. Moreover, those
facts neither undermine the district court’s rationale in reversing the denial of
benefits nor establish substantial justification for the Commissioner’s position.
We conclude the Commissioner failed to demonstrate a reasonable basis in
fact or law for the ALJ’s failure to include plaintiff’s mental and emotional
impairments in his questions to the VE, particularly plaintiff’s limited reading
and comprehension abilities. The district court therefore erred in denying
plaintiff’s application for fees under the EAJA.
Plaintiff sought fees for 43.3 hours of work at a rate of $137.50 per hour,
an amount to which the Commissioner objected. Because the district court
denied the fee request in its entirety, it did not consider the reasonableness of
either the number of hours claimed or the hourly rate sought by plaintiff. We
conclude that these determinations are best made by the district court in the first
instance. Accordingly, we remand to the district court to calculate the
appropriate fee award.
-10-
The judgment of the district court is REVERSED , and the case is
REMANDED to the district court for further proceedings consistent with this
order and judgment.
Entered for the Court
Carlos F. Lucero
Circuit Judge
-11-