Zent v. Commissioner of Social Security
Filing
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OPINION AND ORDER DENYING 26 MOTION for Attorney Fees filed by John J Zent. Signed by Magistrate Judge Roger B Cosbey on 4/15/2011. (lns)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
JOHN J. ZENT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CAUSE NO. 1:10-cv-80
OPINION AND ORDER
Plaintiff John J. Zent brought this suit to contest a denial of disability benefits by
Defendant Michael J. Astrue, Commissioner of Social Security (“Commissioner”). On
December 16, 2010, this Court entered an Opinion and Order (“Order”) that reversed the
Commissioner’s denial of benefits and remanded the case to the Commissioner for further
proceedings. (Docket # 21.) Zent later filed a Motion to recover attorney fees in the amount of
$8,400 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Docket # 26.) The
Commissioner, however, opposes Zent’s fee request, arguing that its litigation position was
“substantially justified.”
For the reasons set forth herein, Zent’s motion will be DENIED.
I. LEGAL STANDARD
Under the EAJA, “[e]xcept as otherwise specifically provided by statute, a 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.” 28 U.S.C. § 2412(d)(1)(A).
The substantial justification standard requires the Commissioner to show that its position was
grounded in “(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for
the theory propounded; and (3) a reasonable connection between the facts alleged and the legal
theory advanced.” United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000)
(citation and internal quotation marks omitted); see also Stewart v. Astrue, 561 F.3d 679, 683
(7th Cir. 2009); Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir. 2006); Golembiewski v.
Barnhart, 382 F.3d 721, 724 (7th Cir. 2004).
“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)
(citation and internal quotation marks omitted). Indeed, the Commissioner can take a position
that is substantially justified, but still lose. Pierce v. Underwood, 487 U.S. 552, 569 (1988). The
Commissioner bears the burden of establishing that its position was substantially justified.
Stewart, 561 F.3d at 683; Cunningham, 440 F.3d at 863; Golembiewski, 382 F.3d at 724.
II. DISCUSSION
Zent offered numerous arguments in opposition to the Administrative Law Judge’s
(“ALJ”) original decision denying benefits. Specifically, Zent claimed that (1) the ALJ erred
when he failed to consider his impairments, including his morbid obesity, in combination; (2) the
ALJ’s credibility determination was not supported by substantial evidence; (3) the ALJ
improperly rejected the opinion of a treating physician, Dr. James Ingram; (4) the medical
opinion of Dr. Brian Zehr necessitated a remand pursuant to sentence six of 42 U.S.C. § 405(g);
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and (5) the ALJ failed to properly apply the Medical Vocational Guidelines in light of Zent’s
borderline age situation. (Opening Br. of Pl. in Social Security Appeal (“Br.”) 13-25.)
Although the Court concluded that the majority of Zent’s arguments were unpersuasive,
his argument that the ALJ failed to properly consider his borderline age situation necessitated a
remand.
A “borderline age situation” arises when a claimant’s precise age can be a determinative
factor in determining eligibility for disability benefits. The Regulations generally classify a
claimant under the age of 50 as a “younger person,” and presume that his age will not seriously
affect his ability to adjust to other work. 20 C.F.R. § 404.1563(c). Alternatively, a claimant
between the ages of 50 and 54 is classified as a “person closely approaching advanced age.” 20
C.F.R. § 404.1563(c). The Regulations direct the Commissioner to consider that, along with any
severe impairments and limited work experience, such a claimant’s age may seriously affect his
ability to adjust to other work. Id. Finally, a claimant over 55 is considered to be a “person of
advanced age,” and the Commissioner must consider that such a claimant’s age will significantly
affect his ability to transition to other work. 20 C.F.R. § 404.1563(d).
The Medical Vocational Guidelines, commonly referred to as the “grids,” take into
account a claimant’s age, as well as the level of education, previous work experience, and the
maximum level of work he may perform, to determine disability. See 20 C.F.R. § 404, Subpt. P,
App. 2. The grids create a matrix that directs a finding of either “disabled” or “not disabled”
based on a claimant’s specific attributes. For example, Medical Vocational Guideline 201.19
directs a finding of not disabled for a “younger individual” limited to sedentary work, with a
limited education, and non-transferable skills. 20 C.F.R. § 404, Subpt. P, App. 2. However,
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Medical Vocational Guideline 201.10 provides that an individual “closely approaching advanced
age,” but with the same limitation to sedentary work, limited education, and nontransferable
skills, should be found disabled. Id.
Recognizing the potentially dispositive importance of a claimant’s age, the Regulations
direct the ALJ to “not apply these age categories mechanically in a borderline situation.” 20
C.F.R. § 404.1563(b). See also Heckler v. Campbell, 461 U.S. 458, 462 (1983); Graham v.
Massanari, No. 00 C 4669, 2001 WL 527326, at *8 (N.D. Ill. May 9, 2001). Rather, “if [the
claimant is] within a few days to a few months of reaching an older age category, and using the
older age category would result in a determination or decision that [he is] disabled, [the ALJ]
will consider whether to use the older age category after evaluating the overall impact of all the
factors of [the claimant’s] case.” 20 CFR § 404.1563(b). See also SSR 82-46(c); Hawkins v.
Apfel, No. 97 C 6760, 1998 WL 378421, at *1 (N.D. Ill. July 1, 1998).
Zent argued that the ALJ mechanically applied the Medical Vocational Guidelines to his
borderline age situation. He pointed out that he was 49 years old and classified as a “younger
individual” as of his date last insured of June 30, 2004, but that he turned 50 on August 30, 2004,
and was then re-classified as “an individual closely approaching advanced age.” (Br. 23.) Zent
claimed that the ALJ committed error when he mechanically applied the “younger individual”
classification to him, apparently without recognizing that a borderline age situation existed. “If
the ALJ had considered [Zent] as a person ‘closely approaching advanced age,’ Medical
Vocational Rule 201.10 would have directed a conclusion of disabled in light of [Zent’s]
past-work experience and limitation to sedentary work.” (Br. 23.)
In response, the Commissioner did not dispute that a borderline age situation existed.
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(Resp. Br. 20.) Rather, he argued that the ALJ did not commit error by failing to explicitly
discuss why he applied Zent’s chronological age of 49 and classified him as a “younger
individual” instead of re-classifying him as an “individual closely approaching advanced age.”
(Resp. Br. 20.) In support, the Commissioner recognized the lack of case law on the subject in
the Seventh Circuit and urged this Court to adopt the recent holding by the Sixth Circuit Court of
Appeals in Bowie v. Commissioner of Social Security, 539 F.3d 395 (6th Cir. 2008), in which the
Court of Appeals declined to impose a per se requirement on the ALJ to discuss a borderline age
situation.
The Court, however, found Zent’s argument to be persuasive. The Court acknowledged
the Sixth Circuit’s decision in Bowie, but also recognized contrary authority in Daniels v. Apfel,
154 F.3d 1129, 1133-34 (10th Cir. 1998), in which the Tenth Circuit held that the Commissioner
must discuss the borderline age situation whenever the claimant is within a few days or months
of the next age category and applying the next category would result in a different disability
determination. Notably, the Seventh Circuit Court of Appeals has yet to address this issue, and
in the few District Court cases in the Seventh Circuit to address the question, see Freundt v.
Massanari, No. 00 C 4456, 2001 WL 1356146, at *17-20 (N.D. Ill. Nov. 2, 2001); Graham,
2001 WL 527326, at *8, Courts have remanded the case where the ALJ failed to consider the
borderline age situation.
Ultimately, the Court found that it could not trace the ALJ’s reasoning, where the
decision indicated that the ALJ was aware of the borderline age situation but there was no
indication about why he chose to classify Zent as a younger individual instead of an individual
closely approaching advanced age. Considering the lack of case law in the Seventh Circuit, and
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based on the particular and unique facts of this case, the Court remanded the case so that the ALJ
could consider whether Zent should be re-classified. (Order 13-14.)
Nevertheless, the Commissioner’s defense of the ALJ’s opinion as a whole was
substantially justified despite the Court’s remand. See Lane v. Apfel, No. 99 C 2640, 2001 WL
521835, at *3 n.6 (N.D. Ill. May 16, 2001) (emphasizing that a court must not count arguments,
but instead focus on the “totality of the circumstances” when considering whether the
Commissioner’s position was substantially justified).
To begin, the Court’s decision in favor of remand was a very close call. The ALJ’s
opinion was thorough and all but one of Zent’s arguments in favor of remand were unpersuasive.
“In general, . . . if the case for remand is strong and clear-cut, Golembiewski teaches that it will
probably be an abuse of discretion to deny fees. If the case for remand is closer, and especially
if it is focused primarily on an inadequate explanation of what might be a reasonable decision,
Cunningham teaches that it will probably not be an abuse of discretion to deny fees.” Purvis v.
Barnhart, No. 1:04-cv-2124, 2006 WL 3354518, at *2 (S.D. Ind. Nov. 16, 2006) (citing
Cunningham, 440 F.3d at 864; Golembiewski, 382 F.3d at 724).
Furthermore, and perhaps most importantly, the case law in the Seventh Circuit on the
obligations of the ALJ when a borderline age situation exists has not been well-developed. The
Seventh Circuit Court of Appeals has yet to address the question, and the parties acknowledged
that a split exists between the Sixth Circuit and Tenth Circuit Courts of Appeals. See Bowie, 539
F.3d at 403; Daniels, 154 F.3d at 1133-34. In light of the unsettled Seventh Circuit case law, the
Commissioner reasonably urged the Court to adopt the Sixth Circuit’s recent holding in Bowie.
The fact that the Court declined to do so and remanded the case for further consideration does
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not, however, indicate that the Commissioner’s position did not have a reasonable basis in law
and fact. See Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994) (finding substantial
justification where Commissioner’s position was supported by case law from other circuits);
Kusilek v. Barnhart, No. 04-C-310, 2005 WL 567816, at *4-5 (W.D. Wis. Mar. 2, 2005) (finding
substantial justification in light of unsettled Seventh Circuit case law and split with other
circuits); Beno v. Shalala, No. 91 C 0544, 1994 WL 8236, at *3 (N.D. Ill. Dec. 29, 1993) (same).
At the end of the day, the Court must make only one global determination regarding
whether the Commissioner’s position was substantially justified. Golembiewski, 382 F.3d at 724;
Godbey v. Massanari, No. 99 C 2690, 2001 WL 1035205, at *2 (N.D. Ill. Sept. 4, 2001). In this
case, the ALJ did not ignore entire lines of evidence or flagrantly disregard regulations and
precedent. Rather, the ALJ’s decision was remanded for further consideration in light of the
particular facts of this case and the unsettled Seventh Circuit case law on the ALJ’s obligations
in a borderline age situation. Accordingly, the Commissioner’s position as a whole was
substantially justified, and Zent’s request for attorney fees will be denied.
III. CONCLUSION
For the foregoing reasons, the Court finds that the Commissioner’s position was
substantially justified. Therefore, Zent’s Motion for Attorney Fees (Docket # 26) is DENIED.
SO ORDERED.
Enter for April 15, 2011.
S/ Roger B. Cosbey
Roger B. Cosbey,
United States Magistrate Judge
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