Hogue v. Colvin
MEMORANDUM OPINION AND ORDER; motion for award of attorney's fees (doc. 29) is DENIED. Signed by Magistrate Judge Katherine P. Nelson on 8/12/2014. (srr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Civil Action No. 2:13-00375-N
MEMORANDUM OPINION AND ORDER
This matter is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule
54(d)(2)(A) of the Federal Rules of Civil Procedure, on the application by Plaintiff
Christopher Hogue for an award of attorney’s fees under the Equal Access to Justice
Act, 28 U.S.C. § 2412 (the “EAJA”) (Doc. 29), filed May 30, 2014, and the
Commissioner of Social Security’s objection to his application (Doc. 31), filed July 7,
Upon consideration of all pertinent materials contained in the file, it is
ORDERED that the application is DENIED because the position of the
Commissioner in this litigation, to defend her decision denying Hogue benefits, “was
substantially justified . . . .”
28 U.S.C. § 2412(d)(1)(A).
Substantial Justification Standard
EAJA requires a district court to “award to a prevailing party . . . fees and
other expenses . . . incurred by that party in any civil action . . . , including
proceedings for judicial review of agency 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 an award unjust.”
While “‘[s]ubstantially justified’ is one of the myriad phrases in the law that
has no precise or fixed definition[, t]he Supreme Court has said that it means
‘justified in substance or in the main.’”
Grieves v. Astrue, 600 F. Supp. 2d 995, 999
(N.D. Ill. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see id. (“A
position that is ‘substantially justified’ must have a ‘reasonable basis both in law and
in fact.’” (quoting Pierce, 487 U.S. at 565)); accord Monroe v. Commissioner of Soc.
Sec. Admin., --- Fed. App’x ----, 2014 WL 2809139, at *1 (11th Cir. June 23, 2014)
(per curiam) (citing Commissioner, I.N.S. v. Jean, 496 U.S. 154, 155 (1990)); cf.
Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (a position is
substantially justified if a “reasonable person could believe the position was
EAJA decisions necessarily involve exercises of discretion because of
the sheer impracticability of formulating a rule of decision in such
cases. Questions that arise under the Act, like many that arise in
litigation generally, are not amenable to regulation by rule because
they involve multifarious, fleeting, special, narrow facts that utterly
resist generalization—at least, for the time being.
Grieves, 600 F. Supp. 2d at 999 (internal citations and quotation marks omitted and
other modifications to original).
It is also essential to recall that “a position can be justified even though
it is not correct,” Pierce, 487 U.S. at 566, n.2, and “[the government]
could take a position that is substantially justified, yet lose [on the
merits].” Id. at 569. Analysis of questions of substantial justification
must take into account the government’s position in the underlying
action and the litigation posture it took while defending the validity of
that action in court. 28 U.S.C. § 2412(d)(2)(D). But, substantial
justification should not be confused with the “substantial evidence”
standard that applies to a court’s initial review of the case. Indeed,
the Supreme Court has cautioned that consideration of a fee petition
“‘should not result in a second major litigation.’” Pierce, 487 U.S. at
563. Thus, an EAJA petition requires the court to revisit the legal
and factual circumstances of this case from a different perspective—the
elusive standard of substantial justification—than it did in reviewing
the record on the initial go-round to determine whether there was
substantial evidence to support the conclusion.
Id. at 1000 (internal citations modified and some omitted).1
The Commissioner must establish that her position was substantially
See Stratton v. Bowen, 827 F.2d 1447, 1450 (11th Cir. 1987) (“The
government bears the burden of showing that its position was substantially
justified.” (quoted in Monroe, 2014 WL 2809139, at *1)).
Here, remand was required because, although Hogue carried his burden to
demonstrate he presumptively meets Listing 12.05(C), entitling him to the
rebuttable presumption of disability, the ALJ failed to explicitly address that listing
at the third step of the sequential evaluation. See Hogue v. Colvin, Civil Action No.
But see Cockerham v. Secretary of Health & Human Servs., CIV.A. No. 87–
1276, 1990 WL 11355, at *3 (E.D. La. Jan. 31, 1990) (“[T]he corresponding definition of
‘substantially justified’ used in the EAJA means ‘to be justified in substance or in the main .
. . the action must be justified to a degree that could satisfy a reasonable person, and must
have a reasonable basis in both law and fact.’ Clearly, definitions of the terms ‘substantial
evidence’ and ‘substantially justified’ are analogous; a reasonable mind must conclude that
when the [Commissioner]’s position was not based upon substantial evidence, it cannot be
found substantially justified.” (quoting Pierce, 487 U.S. at 565)); Scott v. Barnhart, No. 99 C
4651, 2003 WL 1524624, at *5 (N.D. Ill. Mar. 21, 2003) (“When a court finds  a lack of
connection between the evidence in the record and an ALJ’s conclusion, it is appropriate to
find the Commissioner’s position not substantially justified.” (citations omitted)).
2:13–00375–N, 2014 WL 1744759, at *4-5 (S.D. Ala. Apr. 30, 2014); see also Hartman
v. Colvin, No. CA 13–00005–C, 2014 WL 3058550, at *5 (S.D. Ala. July 7, 2014)
(“The ALJ’s failure to acknowledge the applicability of Listing 12.05(C) and afford
the Plaintiff the rebuttable presumption of deficits in adaptive functioning was clear
error because the Plaintiff met both of the requirements in paragraph C.” (citing
Hogue; Frank v. Astrue, No. CA 2:11–00215–C, 2011 WL 6111692 (S.D. Ala. Dec. 8
2011))). At the third step of the sequential evaluation, the ALJ instead stated,
“Listing 12.02, rather than 12.05 was used because while there is some evidence of
intellectual limitations, there is evidence of adapting functioning not consistent with
use of 12.05.”
(Doc. 14, tr. (“R.”) at 16.)
[T]he failure of the ALJ here to address Listing 12.05(C) head on at the
third step and, instead, attempt to address Dr. Blanton’s opinion—the
evidence signaling the need to consider that listing—in the context of
her step-four RFC determination is confusing and makes her decision
difficult for a reviewing court to follow. The ALJ should have
discussed the IQ testing as well as the evidence of adaptive functioning
she contends belies Hogue’s IQ score at the third step of the sequential
evaluation. She instead appears to use Hogue’s adaptive skills (as
well as his deficits, as noted in Dr. Blanton’s opinion) at the fourth step,
to shape the RFC. This failure to apply “the correct framework” is
error, which is not harmless because it prevents the undersigned from
determining whether the ALJ’s conclusions at the third step are
supported by substantial evidence.
Hogue, 2014 WL 1744759, at *5 (citations omitted).2
As just reiterated by the Eleventh Circuit, in Monroe, “a position can be
In addition to the ALJ’s failure to apply the correct framework, the Court
found the adaptive skills the ALJ identified “were not necessarily inconsistent with Hogue’s
IQ score and, thus, are not sufficient evidence to rebut the presumption of disability.” Id. at
justified even if it is not correct.”
2014 WL 2809139, at *1 (citing Pierce, 487 U.S. at
That recent decision aptly demonstrates the distinction between the
substantial evidence inquiry and the substantial justification inquiry, and guides
the Court’s substantial justification analysis here.
In Monroe, the plaintiff appealed the district court’s decision affirming the
Commissioner, arguing that “substantial evidence did not support the [ALJ’s]
determination that Monroe did not meet the criteria of Listing 12.05(C),” and the
Eleventh Circuit vacated and remanded, concluding that Monroe “met the criteria of
Monroe v. Commissioner of Soc. Sec., 504 Fed. App’x 808,
809-10 (11th Cir. Jan. 3, 2013) (per curiam). As to the later-filed EAJA petition,
however, the district court found the Commissioner’s position that Monroe did not
meet the requirements of Listing 12.05(C) substantially justified; this time, the
Eleventh Circuit affirmed, finding the lower court did not abuse its discretion by
concluding the Commissioner’s position, although incorrect, had a reasonable basis
in fact and a reasonable basis in law.
See 2014 WL 2809139, at *2-3.
Here too, the Commissioner’s decision, although remanded by this Court, had
a reasonable basis, in both fact and law, for finding that Listing 12.05(C) did not
apply to Hogue. As to a basis in fact, the ALJ’s conclusion that Hogue’s IQ scores,
which presumptively qualified him for Listing 12.05(C), were inconsistent with
evidence of his adaptive functioning is certainly based on the record (and discussed
at length in the ALJ’s decision). (See, e.g., R. 16, 32-34.) As to a basis in law,
[u]nder [Eleventh Circuit] precedent, the ALJ was not required to
accept [Hogue’s] IQ score, and was permitted to reject it on the basis of
the contrary evidence in the record. Additionally, the ALJ had the
discretion to find that the results of the IQ test were incredible, such
that Listing 12.05(C) was not satisfied. Given this precedent, the
Commissioner had a reasonable basis in law for defending the ALJ’s
finding that [Hogue’s] IQ results did not satisfy Listing 12.05(C).
Monroe, 2014 WL 2809139, at *3 (respectively citing Sharfarz v. Bowen, 825 F.2d
278, 280 (11th Cir. 1987); Popp v. Heckler, 779 F.2d 1497, 1499-1500 (11th Cir.
For the reasons explained above, the petition for an award of attorney’s fees
under the Equal Access to Justice Act (Doc. 29) is DENIED.3
DONE and ORDERED this the 12th day of August, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
Regarding the Court’s conclusion that the adaptive skills identified by the
ALJ were not sufficient (i.e., substantial) evidence to rebut the presumption of disability (see
supra footnote 2), it is noted that the Commissioner’s choice to defend her decision in this
regard also has a reasonable basis in both fact and law. For example, here the vocational
expert (“VE”) classified Hogue’s past relevant work as semi-skilled. (See R. 72.) And in
Perkins v. Commissioner, Soc. Sec. Admin., 553 Fed. App’x 870 (11th Cir. Jan. 22, 2014) (per
curiam), the court noted, “the ALJ did not err by considering evidence of Perkins’ work
experience[—the VE classified as semi-skilled when pressed by plaintiff’s counsel—]and
adaptive functioning” to rebut an IQ score of 69. See id. at 873.
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