Thomas-Edwards v. Commissioner of Social Security

Filing 31

OPINION AND ORDER granting 28 Motion for Attorney Fees Under the Equal Access to Justice Act and AWARDS Plaintiff $10,958.90 in attorney fees and costs. The Agency will direct the payment to Plaintiffs attorney in accordance with the fee agreement he has with Plaintiff, provided he is correct that Plaintiff does not owe a debt subject to federal offset. Signed by Magistrate Judge Paul R Cherry on 2/5/2015. (rmn)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
THERESA THOMAS-EDWARDS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.

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Cause No.: 2:13-CV-176-PRC

OPINION AND ORDER
This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees Under the Equal
Access to Justice Act [DE 28], filed on December 19, 2014. This matter became fully briefed on
January 14, 2015.
After a final decision by the Agency that Plaintiff was not disabled, she filed an appeal with
this Court, arguing that the administrative law judge (ALJ) who decided her case made a number
of errors in evaluating her residual functional capacity (RFC), in evaluating the demands of her past
work and her abilities, in finding that she could do a significant number of other jobs, in crafting the
listing-level analysis, and in assessing her credibility.
This Court issued an Opinion and Order on September 24, 2014, reversing the
Commissioner’s decision to deny benefits and remanding this case for further consideration. Plaintiff
now asks for attorney fees under the Equal Access to Justice Act (EAJA).
The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees incurred in
litigation against the Government, including agency heads such as the Commissioner of Social
Security, if (1) the Plaintiff was the prevailing party; (2) the Commissioner’s position wasn’t
substantially justified; (3) there are no special circumstances that make an award unjust; and (4) the
application was timely and supported by an itemized statement. United States v. Hallmark Constr.

Co., 200 F.3d 1076, 1078–79 (7th Cir. 2000) (citing 28 U.S.C. § 2412(d)(1)(A), (B); Commissioner,
I.N.S. v. Jean, 496 U.S. 154, 154 (1990)). The Commissioner contends that fees are inappropriate
in this case because her position (both in the litigation and in the administrative proceedings that led
up to it) was substantially justified.
The EAJA doesn’t define what “substantially justified” means. Broadly put, the standard is
met 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 v.
Underwood, 487 U.S. 552, 565 (1988)). The Court must consider whether the Commissioner’s
“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 v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (citing
Hallmark Constr., 200 F.3d at 1080). The substantial justification standard is different than the
substantial evidence standard, which is used to evaluate the merits of a claimant’s request for
remand. See Pierce, 487 U.S. at 568–69. Thus, a loss on the merits does not automatically constitute
a lack of substantial justification. See id. at 569.
As applied to Social Security appeals, the Seventh Circuit Court of Appeals has clarified the
standard in two complementary cases: Golembiewski, 382 F.3d and Cunningham v. Barnhart, 440
F.3d 862 (7th Cir. 2006). These cases stand for the following:

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.

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Purvis v. Barnhart, No. 1:04CV2124 DFH VSS, 2006 WL 3354518, at *2 (S.D. Ind. Nov. 16, 2006)
(Hamilton, J.).
In considering substantial justification, the Court is to analyze the “position of the United
States,” which refers to the conduct of the Commissioner throughout the civil action, including prelitigation conduct. 28 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 Court must undertake a global analysis of the
Commissioner’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. The Commissioner bears the
burden of proof in showing that her position was substantially justified. See Pierce, 487 U.S. at 565;
Golembiewski, 382 F.3d at 724.
In deciding this case, the Court found that remand was required because the ALJ failed to
consider Plaintiff’s mild mental limitations as well as Plaintiff’s visual limitations in formulating
the RFC. The Court rejected the Commissioner’s argument that the record did not support any
limitations based on Plaintiff’s vision problems because this analysis did not appear in the ALJ’s
decision and making an argument based on it thus violated the Chenery doctrine. The Court also
found that the ALJ erred in failing to discuss Plaintiff’s fatigue and tiredness in crafting the RFC,
in violation of Ruling 96-8p.
The Court also directed the ALJ to consider a number of other shortcomings on remand,
though it did not make any findings as to whether these errors were reversible. Thus, the Court said
that the ALJ’s step four analysis on remand should incorporate an evaluation of Plaintiff’s job
responsibilities as a phone operator both as she actually performed the job and as it is generally
performed. The Court also ordered that, if the analysis reached Step Five on remand, the ALJ should

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make the requisite specific findings regarding all relevant vocational expert testimony and about
transferability of skills.
Regarding credibility, the Court acknowledged that it was not unreasonable to consider
Plaintiff’s smoking, but nevertheless directed the ALJ to consider the applicable case law regarding
credibility and a history of smoking. The Court also directed the ALJ to consider case law dealing
with past drug use and lack of candor. The Court further noted that the ALJ failed to discuss
Plaintiff’s activities of daily living, precipitating and aggravating factors, and medication side effects
as set required by SSR 96-7p. Nor did the ALJ discuss the report completed by Plaintiff’s husband
as required by SSR 06-03p. The Court directed the ALJ to incorporate these factors into her analysis
on remand.
This is a close case. The errors were largely of the failure-to-consider-or-explain variety. As
the Seventh Circuit Court of Appeals has explained, “it typically takes something more egregious
than just a run-of-the-mill error in articulation to make the commissioner’s position
unjustified—something like the ALJ’s ignoring or mischaracterizing a significant body of evidence,
or the commissioner’s defending the ALJ’s opinion on a forbidden basis.” See Bassett v. Astrue, 641
F.3d 857, 860 (7th Cir. 2011) (citing Golembiewski, 382 F.3d at 724)).
Taken individually, the errors were perhaps relatively minor. And the Commissioner is
correct that the Court upheld several portions of the ALJ’s analysis. Cf. Harris v. Astrue, No.
2:06CV222PRC, 2008 WL 410577, at *4 (N.D. Ind. Feb. 11, 2008) (noting that arguments based
on tallying are disfavored). This notwithstanding, the articulation errors were numerous and
pervasive and compounded by the ALJ’s failure to consider relevant case law. Further, the
Commissioner’s argument regarding Plaintiff’s visual problems violated the Chenery doctrine,

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which is a serious (and common) problem in social security cases. See id.; see also, e.g., Hughes v.
Astrue, 705 F.3d 276, 279 (7th Cir. 2013). Reasonable people might well pause to think about the
appropriateness of this action, but would conclude upon reflection that there was no genuine dispute.
The Commissioner’s position, then, was not substantially justified.
The Commissioner makes no other objections to Plaintiff’s fee request, and the Court
therefore GRANTS Plaintiff’s Motion for Attorney’s Fees Under the Equal Access to Justice Act
[DE 28] and AWARDS Plaintiff $10,958.90 in attorney fees and costs. The Agency will direct the
payment to Plaintiff’s attorney in accordance with the fee agreement he has with Plaintiff, provided
he is correct that Plaintiff does not owe a debt subject to federal offset.
SO ORDERED this 5th day of February, 2015.
s/ Paul R. Cherry
MAGISTRATE JUDGE PAUL R. CHERRY
UNITED STATES DISTRICT COURT
cc:

All counsel of record

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