Lugo-Gonzalez v. Commissioner of Social Security

Filing 30

OPINION and ORDER granting 26 MOTION for Attorney Fees under the equal access to justice act filed by Jose Lugo-Gonzalez. The Commissioner is ORDERED to pay $8,938.13 in attorneys fees. Signed by Magistrate Judge Andrew P Rodovich on 7/25/11. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
JOSE M. LUGO-GONZALEZ,

)
)
Plaintiff
)
)
v.
)
)
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
)
)
Defendant
)

CAUSE NO: 2:09-cv-338

OPINION AND ORDER
This matter is before the court on the Motion for Attorney’s
Fees Under the Equal Access to Justice Act [DE 26] filed by the
plaintiff, Jose M. Lugo-Gonzalez, on June 8, 2011.

For the

following reasons, the motion is GRANTED.
Background
On December 1, 2005, the plaintiff, Jose M. Lugo-Gonzalez,
filed an application for Supplemental Security Income (SSI),
alleging a disability since March 15, 2005.

His application was

denied initially and also upon reconsideration.

Following a

hearing, Administrative Law Judge Shirley Moscow Michaelson
("ALJ") issued a decision on April 19, 2007, finding Lugo-Gonzalez not disabled.

Lugo-Gonzalez requested review of the decision

and on August 12, 2009, the Appeals Council denied the request.
On October 14, 2009, Lugo-Gonzalez filed a complaint with
this court, seeking review of the Commissioner’s final decision.

On February 19, 2010, Lugo-Gonzalez filed an opening brief, submitting the following six arguments in favor of reversal or
remand: (1) the ALJ erred in failing to consider whether LugoGonzalez’s physical impairments met or equaled Listing 1.04; (2)
the ALJ failed to analyze properly Lugo-Gonzalez’s credibility
pursuant to SSR 96-7p; (3) the ALJ failed to analyze properly
Lugo-Gonzalez’s obesity when determining his RFC; (4) the ALJ
erred in determining that Lugo-Gonzalez needed to sit for five
minutes every three hours because it was inconsistent with both
his testimony and that of the medical expert and the medical
evidence of record; (5) the ALJ erred in failing to incorporate
all of the RFC limitations into the hypotheticals she posed to
the vocational expert; and (6) the ALJ misstated the number of
positions available for someone with Lugo-Gonzalez’s limitations.
On March 11, 2011, this court issued an Opinion and Order
and reversed and remanded the Commissioner’s decision for further
proceedings on the sole issue of whether Lugo-Gonzalez’s physical
impairments satisfied Listing 1.04.

The court explained that it

was unclear from the ALJ’s decision whether she considered Listing 1.04, disorders of the spine.

The ALJ’s decision did not

cite, discuss, or reference Listing 1.04 despite medical evidence
of record showing that Lugo-Gonzalez may have had some of the
disorders contemplated by the Listing.

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The Commissioner defended

his position by responding that the ALJ’s determination was
supported by the Disability Determination and Transmittal Forms
completed by the state reviewing physicians, which stated that
Lugo-Gonzalez did not meet a Listing.

The court explained that

the ALJ’s reliance on the Disability Determination and Transmittal forms was not conclusive proof that Lugo-Gonzalez did not
meet a Listing because there was contradictory evidence of
record, and the ALJ was required minimally to articulate her
reasons for finding against this evidence.
On June 8, 2011, Lugo-Gonzalez’s counsel filed the instant
motion for attorney’s fees, arguing that the Commissioner’s
decision was not substantially justified.

The Commissioner filed

his response on June 15, 2011, opposing Lugo-Gonzalez’s motion
and arguing that the Commissioner’s decision was substantially
justified, and alternatively, that the hourly rate requested was
not reasonable.
Discussion
The EAJA allows a prevailing plaintiff to recoup reasonable
attorney fees incurred in litigation against the Commissioner of
Social Security "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).

See

also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316,

3

110 L.Ed.2d 134 (1990); Golembiewski v. Barnhart, 382 F.3d 721,
723-24 (7th Cir. 2004).

A fee application must be filed within

30 days of a court’s final judgment and must satisfy the following requirements: (1) a showing that the applicant is a "prevailing party;" (2) a showing that the applicant is "eligible to
receive an award;" (3) a showing of "the amount sought, including an itemized statement from any attorney or expert witness
representing or appearing in [sic] behalf of the party stating
the actual time expended and the rate at which fees and other
expenses were computed;" and (4) an "alleg[ation] that the position of the United States was not substantially justified."
U.S.C. §2412(d)(1)(B).

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See also Scarborough v. Principi, 541

U.S. 401, 405, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004); United

States v. Hallmark Constr. Co., 200 F.3d 1076, 1078-79 (7th Cir.
2000) (setting forth the elements of §§2412(d)(1)(A) & (B)).
The court entered the order remanding Lugo-Gonzalez’s claim
to the ALJ on March 11, 2011.

The plaintiff did not file his

motion for attorney’s fees until June 8, 2011, 58 days after the
court entered the order reversing the decision of the ALJ.

How-

ever, the 30 day time limit on filing a motion for attorney’s
fees does not begin to run until the time to appeal expired — 60
days following the entry of the court’s order.

Huichan v. Barn-

hart, 2006 WL 6087660, *1 (W.D. Wis. Oct. 10, 2006); Federal Rule

4

of Appellate Procedure 4(a).

Therefore, Lugo-Gonzalez’s applica-

tion for attorney’s fees was filed before the 30 day time limit
began to run and was timely.
It is also uncontested that Lugo-Gonzalez was the prevailing
party.

Therefore, the two issues now remaining before this court

are: (A) whether the position of the Commissioner was "substantially justified;" and (B) whether the fees requested by LugoGonzalez’s attorney are reasonable.
Considering whether the Commissioner was substantially
justified, the court is to analyze the "position of the United
States," which refers to the conduct of the Commissioner throughout the civil action, including pre-litigation conduct.

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U.S.C. §2412(d)(2)(D); Golembiewski, 382 F.3d at 724; Marcus v.

Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994).

The trial court

must consider whether the Commissioner’s pre- and post-litigation
"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."

Golembiewski, 382 F.3d

at 724 (citing Hallmark Constr., 200 F.3d at 1080).

A court

should evaluate the factual and legal support for the Commissioner’s position throughout the entire proceeding.

Constr., 200 F.3d at 1080.

See Hallmark

A court need only make one determina-

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tion regarding the Commissioner’s conduct during the entire civil
action.

Jean, 496 U.S. at 159, 110 S.Ct. at 2319; Jackson v.

Chater, 94 F.3d 274, 278 (7th Cir. 1996).

"[F]ees may be awarded

in cases where the government’s prelitigation conduct was not
substantially justified even though its litigation position may

Marcus, 17

have been substantially justified and vice versa."
F.3d at 1036.

The court must undertake a global analysis of the

government’s position because whether that position was substantially justified will rarely be decided by a single issue.

See

Hallmark Constr., 200 F.3d at 1080.
Although the EAJA does not define "substantial justification," the Supreme Court has defined the term to mean "justified
to a degree that could satisfy a reasonable person."

Pierce v.

Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490
(1988).

See also Golembiewski, 382 F.3d at 724.

Expanding on

this definition, the Seventh Circuit explained, "'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) (citing Pierce, 487 U.S. at 565, 108 S.Ct. at 2550);

Church v. Astrue, 496 F.Supp.2d 964, 966 (N.D. Ind. 2007) ("[I]f
an agency had 'a rational ground for thinking it had a rational

6

ground for its action,' the Commissioner's position is substantially justified.” (citing Kolman v. Shalala, 39 F.3d 173, 177
(7th Cir. 1994)).

When conducting this analysis, the court

should consider whether the ALJ’s decision was plausibly supported by evidence of record and whether the Commissioner’s
position was supported by applicable law.

Church, 496 F.Supp.2d

at 966 (citing Cunningham v. Barnhart, 440 F.3d 862, 863 (7th
Cir. 2006); Kolman, 39 F.3d at 177).

The substantial justifica-

tion standard is different than the substantial evidence standard, which is used to evaluate the merits of a claimant’s
request for remand.

Thus, a loss on the merits does not automat-

ically constitute a lack of substantial justification.

Pierce, 487 U.S. at 568-69, 108 S.Ct. at 2552.

See

The Commissioner

bears the burden of proof in showing that the government’s litigation position was substantially justified.

See Pierce, 487

U.S. at 565, 108 S.Ct. at 2561; Golembiewski, 382 F.3d at 724.
Lugo-Gonzalez argues that the ALJ’s decision violated longstanding precedent because she failed to as much as mention
Listing 1.04 and did not articulate any reason for finding that
Lugo-Gonzalez did not meet Listing 1.04 despite ample evidence of
record suggesting he satisfied the Listing.

Lugo-Gonzalez urges

that the ruling in Ribaudo v. Barnhart, 458 F.3d 580, 584 (7th
Cir. 2006), which provides that the ALJ may rely solely upon the

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opinion of the medical expert given in the disability determination form in the absence of contradictory evidence, but must
otherwise minimally articulate her reason for holding contrary to
the opposing evidence, was long-standing precedent at the time of
the court’s opinion.

The Commissioner contends that the ALJ

relied not only on the state reviewing physician’s disability
determination forms, but also on the medical expert’s testimony.
The Commissioner argues that the ALJ was justified to rely on the
ME’s testimony because the ME analyzed the critical elements of
Listing 1.04, and explained that Lugo-Gonzalez did not demonstrate radiculopathy, positive straight leg raise testing, or
atrophy, as required by the Listing.

The ME further concluded

that Lugo-Gonzalez could perform a range of light work, further
indicating her opinion that Lugo-Gonzalez did not meet or equal a
Listing.
It is not sufficient that the Commissioner can now find
reasons in the record to support the ALJ’s ultimate conclusion.

Golembiewski, 382 F.3d at 724 ("We found that the Commissioner's
defense of the ALJ's decision failed because . . . she relied
upon facts not discussed by the ALJ to try and bolster his
credibility determination."). The ALJ had a duty to fully develop
the record and explain her findings in her opinion.

See Golem-

biewski, 382 F.3d at 724 (explaining that the court remanded the

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ALJ’s decision because he did not provide any discussion explaining his credibility finding); Barnett v. Barnhart, 381 F.3d 665,
671 (7th Cir. 2004)(explaining that the ALJ must provide more
than a two sentence explanation for why the claimant does not
satisfy the Listings and cannot assume that the claimant does not
meet a Listing from the absence of testimony by the medical
expert about the Listing); Brindisi ex rel. Brindisi v. Barnhart,
315 F.3d 783, 786 (7th Cir. 2003)("As we have recently noted,
failure to discuss or even cite a listing, combined with an
otherwise perfunctory analysis, may require a remand").
The only reference the ALJ made to the possibility that
Lugo-Gonzalez might have met a Listing for his physical impairments was a single sentence stating: "The undersigned finds that
the claimant’s impairments do not meet or equal any listing based
on a comparison of the listings by the State agency, medical
expert Dr. Ashok Jilhewar (for physical impairments), medical
expert Kravitz (for mental impairment) and the undersigned
Administrative Law Judge."

(Tr. 28)

The court cannot determine

from this statement whether the ALJ even considered Listing 1.04.
The ALJ not only failed to cite the Listing, but did not provide
any explanation for her conclusion.

A finding that the claimant

does not equal a Listing without any explanation is a clear
violation of the ALJ’s duty to develop the record.

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See, Golem-

biewski, 382 F.3d at 724 (explaining that the ALJ’s decision was
remanded because he did not provide any discussion about his
credibility finding); Brindisi, 315 F.3d at 786 (explaining that
an ALJ’s decision may be remanded for failing to cite a Listing
and give a perfunctory analysis explaining why the claimant’s
condition does not satisfy the standard).

See also Church, 496

F.Supp.2d at 967 ("[A]lthough the ALJ's reasoning was inadequate
in this case, this is not a case where the ALJ gave no reasoning
for his opinion.").
Although the Commissioner argues that the ALJ’s decision was
supported by the disability determination forms completed by the
state reviewing physician’s and the medical expert’s testimony,
this explanation was not articulated in the ALJ’s decision.

See

Golembiewski, 382 F.3d at 724 (explaining that the Commissioner
cannot rely on information that the ALJ did not include in her
opinion).

Furthermore, the ALJ did not question Dr. Jilhewar

about Listing 1.04 during the hearing.

Therefore, the ALJ’s line

of questioning was not developed to such a degree that the court
could have inferred that both Dr. Jilhewar and the ALJ considered
Listing 1.04.

The Commissioner may not fabricate an explanation

to support the ALJ’s decision that is not discernable from the
ALJ’s decision.

Golembiewski, 382 F.3d at 724.

Because the

ALJ’s decision was entirely devoid of any indication that Listing

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1.04 was even considered, the Commissioner was not substantially
justified in arguing that the ALJ satisfied her burden and adequately developed the record.

For this reason, Lugo-Gonzalez is

entitled to an award of attorney’s fees.
The Commissioner next disputes the reasonableness of the
hourly rate Lugo-Gonzalez’s attorney requests.

Lugo-Gonzalez has

the burden of proving that the EAJA fees he seeks are reasonable.
See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933,
1941, 76 L.Ed.2d 40 (1983); 28 U.S.C. §2412(d)(1)(B). "Hours that
are not properly billed to one's client are also not properly
billed to one's adversary pursuant to statutory authority."

Hensley, 461 U.S. at 434, 103 S.Ct. at 1940-41 (quoting Copeland
v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)).

As a result,

the prevailing party should make a good-faith effort to exclude
from a fee request hours that are excessive, redundant, or
otherwise unnecessary.
at 1939-40.

See Hensley, 461 U.S. at 437, 103 S.Ct.

The amount of a fee award is left to the discretion

of the district court because of its "superior understanding of
the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters."

Hensley,

461 U.S. at 437, 103 S.Ct. at 1941.
The ALJ disputes the hourly rate Lugo-Gonzalez’s attorney
requests, arguing that it is based on the consumer price index

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for all urban consumers rather than on the consumer price index
for Midwest Urban consumers.

The EAJA provides that "attorney

fees shall not be awarded in excess of $125 per hour unless the
court determines that an increase in the cost of living or a
special factor . . . justifies a higher fee."
§2412(d)(2)(A)(ii).

28 U.S.C.

Because the local consumer price index is

the most accurate source of the cost of living in the market
where the litigation occurred, the court agrees that the Midwest
Urban Consumer Price Index should be used to calculate the rate
of attorney’s fees.

When the Midwest Urban Consumer Price Index

is applied, the hourly rate is adjusted to $170.25 per hour.

The

attorney fee reward is therefore adjusted accordingly, and the
Commissioner is ORDERED to pay $8,938.13 in attorney’s fees.
_______________
Based on the foregoing, the Motion for Attorney’s Fees Under
the Equal Access to Justice Act [DE 26] filed by the plaintiff,
Jose M. Lugo-Gonzalez, on June 8, 2011, is GRANTED.
sioner is ORDERED to pay

The Commis-

$8,938.13 in attorney’s fees.

ENTERED this 25th day of July, 2011

s/ Andrew P. Rodovich
United States Magistrate Judge

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