CHEEK v. ASTRUE

Filing 41

ORDER denying Plaintiff's 33 Motion for Attorney Fees and granting Plaintiff's 35 Motion for Attorney Fees. Signed by Magistrate Judge Denise K. LaRue on 11/4/2015. (CBU)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION

LISA A. CHEEK,
Plaintiff,
vs.

CAUSE NO.

1:12-cv-1834-DKL-SEB

CAROLYN W. COLVIN, Commissioner of
Social Security,
Defendant.
ENTRY
Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d) [doc. 33]
Plaintiff’s Attorney’s Motion for an Award of Attorneys Fees under
42 U.S.C. 406(b) [doc. 35]
The Court reversed and remanded the defendant Commissioner’s denial of
plaintiff Lisa A. Cheek’s applications for disability benefits under the Social Security Act.
Entry [doc. 31]. By way of the above-entitled motions, Ms. Cheek moves for an award of
attorney’s fees in the amount of $6,090.96 under the Equal Access to Justice Act (“EAJA”),
[doc. 33] (”EAJA Motion”), and her attorney separately moves for an award of fees under
42 U.S.C. § 406(b), [doc. 35] (“§ 406 Motion”). For the reasons explained herein, Ms.
Cheek’s motion is denied and her attorney’s motion is granted.
EAJA Motion
To qualify for a fee award under the EAJA, five criteria must be satisfied: (1) the
movant is a prevailing party, (2) the government’s position was not substantially
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justified, (3) no special circumstances make an award unjust, (4) a fee application was
filed within thirty days of final judgment in the action and was supported by an itemized
application, and (5) the movant had a net worth of less than two million dollars. 28 U.S.C.
§ 2412(d)(1)(B) and (d)(2)(B). See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158, (1990).
There is no dispute that Ms. Cheek is a prevailing party, that no special circumstances
exist, that her motion is timely, and that she meets the financial qualification for an award.
The only criteria at issue is whether the Commissioner’s position was substantially
justified. The Commissioner also opposes Ms. Cheek’s separate request that any award
be made payable directly to her attorney, pursuant to an assignment of EAJA fees.
Because the Court finds that the Commissioner’s position was substantially justified, it
does not reach this second dispute.
The substantially-justified standard is a low one.
The government bears the burden of proving that its position was
substantially justified, and to do so, it must show: “(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 theory propounded.” Conrad, 434 F.3d at 990; see also Golembiewski v.
Barnhart, 382 F.3d 721, 724 (7th Cir.2004). In evaluating the government’s
position, we review the claim in its entirety rather than the individual
positions the government may have taken throughout different phases of
litigation. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161–62, 110 S.Ct. 2316, 110
L.Ed.2d 134 (1990).
United States v. Pecore, 664 F.3d 1125, 1131 (7th Cir. 2011). The fact that the Court reversed
the Commissioner’s decision and remanded Ms. Cheek’s claims does not automatically
mean that the Commissioner’s decision was not substantially justified. Pierce v.
Underwood, 487 U.S. 552, 569 (1988); Temme v. Bemis Co., 762 F.3d 544, 551 (7th Cir. 2014).
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The substantially-justified standard is satisfied if there is a “genuine dispute” or if
“reasonable persons could differ as to the appropriateness of the contested action.” Stein
v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992). In short, if the Commissioner had a rational
ground for believing that she had a rational ground for her decisions, then the standard
is satisfied. Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994). A prevailing plaintiff
challenging a finding that the Commissioner’s decision was substantially justified “faces
an uphill challenge. The commissioner’s position is substantially justified if a reasonable
person could conclude that the ALJ’s opinion and the commissioner’s defense of the
opinion had a rational basis in fact and law. Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.
1994). And the Supreme Court has entrusted the question whether the commissioner’s
position is substantially justified to the discretion of the district court, in no small part
because the analysis is not susceptible to a firm rule or even a ‘useful generalization.’ See
Pierce v. Underwood, 487 U.S. 552, 561–62, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).” Bassett
v. Astrue, 641 F.3d 857, 859-60 (7th Cir. 2011).
Another principle of analysis under the EAJA, is that “[t]he relevant
‘substantiality’ inquiry should be into a party’s posture during the case as a whole, rather
than treating each segment as an ‘atomized line-item[ ].’” Temme, 762 F.3d at 551 (quoting
Comm'r v. Jean, 496 U.S. 154, 161–62 (1990)). The EAJA does not authorize fees whenever
the government makes a mistake.

Rather, the Commissioner’s position can be

substantially justified, on the whole, despite errors and mistakes.

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Ms. Cheek’s argument that the position of the Commissioner was not substantially
justified consists of the following: “Because [the United States’] adjudicator did not
expressly articulate an evaluation of whether the claimant needs an assistive device, and
because its adjudicator erroneously discredited the claimant’s description of symptoms,
the government’s defense of this suit was not substantially justified.” EAJA Motion, at 2.
Although conclusory, this statement appears in Ms. Cheek’s motion and the burden of
proof lies with the Commissioner. But Ms. Cheek did not file a reply to the arguments in
the Commissioner’s response, so this statement is Ms. Cheek’s only argument on the
issue.
In support of her suit for judicial review, Ms. Cheek asserted three errors by the
ALJ. The Court rejected one, accepted one, and accepted most of the third. The Court
rejected Ms. Cheek’s primary asserted error that the ALJ failed to adequately articulate
his Listings analysis. The Court accepted her second argument that the ALJ failed to
adequately articulate why he rejected her asserted need for an assistive device. The Court
found that the ALJ failed to “expressly evaluate” her need for an assistive device, Entry,
at 12, 14, and the evidence of record “obligated the ALJ to specifically articulate, at some
level, his evaluation of her need for an assistive device,” id., at 14. The Court specifically
found that “this is a close case.” Id. Because the ALJ’s failure to articulate prevented a
determination whether his rejection of Ms. Cheek’s need for an assistive was supported
by substantial evidence, the Court remanded the issue “for that articulation and, if
necessary, consequent re-consideration of Ms. Cheek’s RFC and disability.” Id.

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Articulation errors alone are usually insufficient to find the Commissioner’s
position not substantially justified.
The commissioner’s position may be substantially justified even if it turns
out to be completely wrong. Jackson v. Chater, 94 F.3d 274, 278 (7th Cir.
1996). For example, the ALJ’s opinion might offer merely a “cursory and
inadequate” analysis of an important point, but that shortcoming alone
usually will not be enough to poison the opinion ― or the commissioner’s
defense of the opinion. See United States v. Thouvenot, Wade & Moerschen,
Inc., 596 F.3d 378, 387 (7th Cir. 2010). That is because the requirement that
the ALJ must articulate an assessment of the evidence is “deliberately
flexible,” Stein v. Sullivan, 966 F.2d 317, 319–20 (7th Cir. 1992), so the ALJ’s
failure to “connect all the dots” in the analysis ― and the commissioner’s
defense of those gaps in the ALJ’s reasoning —is likely to be grounded in a
reasonable, albeit erroneous, interpretation of the facts and law, see
Cunningham v. Barnhart, 440 F.3d 862, 864–65 (7th Cir. 2006). Indeed 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 Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.
2004).
Bassett v. Astrue, 641 F.3d 857, 859-60 (7th Cir. 2011).
The Court already found that the issue of the ALJ’s articulation of Ms. Cheek’s
need for an assistive device was a close one. In its Entry, the Court noted that the
Commissioner cited several items of evidence (or lack of evidence) in the record that
tended to be inconsistent with Ms. Cheek’s necessity for an assistive device. Entry, at 13.
While the Court found that it could not consider such evidence on review, it did not
conclude that a finding that Ms. Cheek required or did not require an assistive device (of
any type, for any period of time, or under any particular circumstances) would or would
not be supported by substantial evidence. Entry, at 13. Rather, the Court found only an
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articulation error by the ALJ that prevented the Court from evaluating such findings. Id.,
at 14. In these circumstances, including the absence of any response by Ms. Cheek to the
Commissioner’s argument, the Court does not find that this error alone shows that the
Commissioner’s position lacks substantial justification.
Ms. Cheek next argued that the ALJ’s credibility determination was erroneous
because he (1) improperly required objective verification of her activities of daily living,
(2) failed to explain his findings that her treatments were routine and conservative and
that her medications were effective, and (3) improperly relied on the fact that she cared
for her child to discredit her statements about the severity of her symptoms. Entry, at 1516. The Court rejected the first asserted error. Entry, at 15. The Court agreed that the
ALJ failed to explain why he found that Ms. Cheek’s treatments were routine and
conservative and why her treatments were effective. Id., at 15-16. Again, the Court found
that the ALJ’s error was one of articulation: he failed to explain his reasoning and support
his reasoning with citations to the record.
The Court found that the ALJ’s reliance on Ms. Cheek caring for her child as a
reason to discredit her symptom descriptions was contrary to Gentle v. Barnhart, 430 F.3d
865, 867 (7th Cir. 2005), and was unsupported by substantial evidence. Entry, at 16. Thus,
the Court found that the ALJ’s finding was erroneous. However, the Court explained
that the ALJ should have inquired whether Ms. Cheek received or required help with
child care before relying on the fact of her providing that care as a reason to discredit her
symptom testimony.

Id.

The Court did not hold that her care could not, in any
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circumstances, tend to discredit her testimony; only that it did not do so on the basis of
the record as it was then constituted, without the answers to additional inquiry.
Considering the Commissioner’s position as a whole, the Court concludes that it
was substantially justified. Of the three errors found by the Court, two were errors of
articulation only and the third was an error of law and fact. This one last error does not
substantially detract from the justification for the Commissioner’s decision as a whole.
Therefore, the Court concludes that the Commissioner’s decision was substantially
justified and that an award of EAJA fees is not warranted.
§ 406 Motion
On remand, the Commissioner awarded Ms. Cheek past-due benefits in the
amount of $63,138.00. Ms. Cheek’s attorney now moves for an award of $15,784.50 as a
reasonable attorney’s fee under 42 U.S.C. § 406(b). That provision limits an award to
twenty-five percent of past-due benefits.

Ms. Cheek and her attorney have a fee

agreement that provides that her attorney will receive twenty-five percent of any pastdue benefits as a contingent fee. The Commissioner does not object to the motion.
Defendant’s Response to Plaintiff’s Motion for an Award of Attorney’s Fees Pursuant to 42
U.S.C. § 406(b) [doc. 37]. The Court has reviewed the fee request and supporting
materials, including counsel’s brief in support, and it finds that the fee requested is
reasonable in relation to the result achieved and the services rendered. Therefore, the
motion is granted and a separate order will issue.

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Conclusion
Plaintiff’s Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d) [doc. 33] is DENIED. Plaintiff’s Attorney’s Motion for an Award of
Attorneys Fees under 42 U.S.C. 406(b) [doc. 35] is GRANTED.
DONE this date: 11/04/2015

Distribution to all ECF-registered counsel of record via ECF-generated e-mail.

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