Blanchard v. Colvin
MEMORANDUM Opinion and Order: This matter is before the Court on Plaintiff's Motion for Attorneys Fees Under the Equal Access to Justice Act (EAJA). [Dkt. 31.] For the reasons that follow, Plaintiff's motion is denied. - Signed by the Honorable Susan E. Cox on 11/9/2017. [For further details see order] Mailed notice (np, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
NANCY A. BERRYHILL, Acting
Commissioner of the U.S. Social
No. 16 C 2117
Magistrate Judge Susan E. Cox
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees Under the Equal
Access to Justice Act (“EAJA”). [Dkt. 31.] For the reasons that follow, Plaintiff’s motion is
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed a SSI application on June 29, 2011, alleging a disability onset date of
February 1, 2011. (R. 131–36.) Her initial application was denied on August 2, 2011 and again at
the reconsideration stage on March 8, 2012. (R. 68–79.) Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”) on April 19, 2012, which was held on January 15, 2013. (R.
80, 38–65.) Plaintiff appeared at the hearing with her attorney. On March 14, 2013, the ALJ
issued a written decision denying Plaintiff’s application for DIB. (R. 24–34.) The Appeals
Council (“AC”) denied review on April 9, 2014. (R. 12–17.)
Plaintiff appealed that decision, and this Court reversed and remanded the case because
the ALJ had failed to consider Plaintiff’s non-severe ailment of plantar fasciitis in formulating
the ALJ’s residual functional capacity (“RFC”) assessment. (Dkt. 23.) Defendant Nancy A.
Berryhill (the “Commissioner”) then moved for reconsideration, arguing that Plaintiff’s plantar
fasciitis “did not meet the twelve-month durational requirement of the Social Security Act,”
which required the ALJ “to omit it from his analysis.” (Dkt. 25 at 1.) The Court denied that
motion because it was not timely filed pursuant to Federal Rule of Civil Procedure 59(e), and an
“error of law” is not a valid ground to bring a motion pursuant to Federal Rule of Civil Procedure
Plaintiff then moved for attorney’s fees pursuant to the EAJA, which provides that a
district court may award attorney’s fees where: 1) the claimant is a prevailing party; 2) the
government was not substantially justified; 3) no “special circumstances” make an award unjust;
and 4) the fee application is submitted within 30 days of the final judgment and is supported by
an itemized statement. Golembiewski v. Banrnhart, 382 F.3d 721, 723-24 (7th Cir. 2004) (citing
28 U.S.C. § 2412(d)(1)(A).) The Commissioner’s response to the motion focuses solely on
whether the government’s position was substantially justified; as such, the Court will only
consider that issue in its opinion below.
The Court finds that the Commissioner’s position was substantially justified. Although
the EAJA does not define the term “substantially justified,” the Supreme Court “has defined the
term to mean ‘justified to a degree that could satisfy a reasonable person.’” Greer v. Apfel, 172
F.3d 53 (7th Cir. 1998) (quoting Pierce v. Underwood, 487 U.S. 552, 562 (1988)). Ultimately,
“[t]he test for substantial justification is whether the agency had a rational ground for thinking it
had a rational ground for its action.” Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994.) The
EAJA does not require that the agency’s arguments be correct in order for them to be
substantially justified; in fact, the “Commissioner’s position may be substantially justified even
if it turns out to be completely wrong.” Bassett v. Astrue, 641 F.3d 857, 859 (7th Cir. 2011).
As noted in the Commissioner’s brief to the instant motion, there is a durational
consideration of twelve months in order for a claimant’s impairment to be found disabling. For
example, the federal regulations state that “[u]nless your impairment is expected to result in
death, it must have lasted or must be expected to last for a continuous period of at least 12
months.” 20 C.F.R. § 406.909. If this durational requirement were applied to all impairments
suffered by a claimant (i.e., both severe and non-severe impairments), the Commissioner’s
position would have been correct, and the ALJ would not need to consider Plaintiff’s plantar
fasciitis in the RFC finding. As such, it was not irrational for the Commissioner to maintain that
Plaintiff had to suffer from plantar fasciitis for at least twelve months in order for it to factor into
the ALJ’s FRC analysis, and the position was substantially justified.
However, the Court continues to maintain that the ALJ’s decision was flawed; the
durational requirement does not free an ALJ from his or her duty to consider all impairments
(including non-severe impairments) in making a finding on the claimant’s RFC. From the
Court’s review, the durational requirements cited by the Commissioner only concern whether the
claimant’s condition can rise to the level of a severe impairment that would permit a finding that
the claimant is disabled, as defined in the Social Security Act. 1 The Court has found no such
durational requirements for non-severe impairments.
In fact, ALJs regularly find that an
impairment that lasts less than twelve months is, by definition, a non-severe impairment. See,
e.g., Gray v. Astrue, 2011 WL 332540, at *4 (N.D. Ill. Jan. 28, 2011); Pawlikowski v. Astrue,
2009 WL 2515608, at *7 (N.D. Ill. Aug. 17, 2009). Moreover, it is well established that “[w]hen
The Commissioner does not challenge the ALJ’s finding that Plaintiff suffered from other severe impairments,
including diabetes, obesity, and hypertension. (See Dkt. 23.)
determining a claimant’s RFC, the ALJ must consider the combination of all limitations on the
ability to work, including those that do not individually rise to the level of a severe impairment.”
Denton v. Astrue, 596 F.3d 419, 423 (7th Cir. 2010). Therefore, if an impairment that lasts fewer
than twelve months is necessarily non-severe, and an ALJ must consider non-severe impairments
in determining a claimant’s RFC, the ALJ in this case was required to consider Plaintiff’s plantar
fasciitis in the RFC determination, even if that condition lasted fewer than twelve months. In
other words, the Commissioner’s position may have been substantially justified, but the ALJ’s
decision required the Court to remand for the reasons articulated in its previous opinion.
For the foregoing reasons, Plaintiff’s Motion for Attorney’s Fees Under the Equal Access
to Justice Act is denied.
Susan E. Cox
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?