DEVILLEZ v. ASTRUE
Filing
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ORDER denying 22 Motion for Attorney Fees. Signed by Magistrate Judge William G. Hussmann, Jr., on 9/25/2013. (NRN) Modified on 9/25/2013 (NRN).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
EVANSVILLE DIVISION
MARY DEVILLEZ
(Social Security No. XXX-XX-5009),
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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3:12-cv-86-WGH-RLY
ORDER DENYING PLAINTIFF’S EAJA MOTION FOR AWARD OF
ATTORNEY’S FEES
On August 15, 2013, Plaintiff moved for an award of attorney’s fees
under the Equal Access to Justice Act. The Court, having considered the
motion, the parties’ filings, and relevant law, and being duly advised, hereby
DENIES the motion.
I.
Background
Plaintiff applied for Disability Insurance Benefits on October 2, 2010,
and Supplemental Security Income on October 22, 2010. An Administrative
Law Judge (“ALJ”) held a hearing on March 6, 2012, and issued an opinion
finding Plaintiff was not disabled (and therefore not eligible for benefits) on
March 21, 2012. (See Dkt. 10-2). After the Appeals Council denied her request
for review, Plaintiff sought judicial review in this Court and alleged that the ALJ
erred in four respects. (See Dkt. 12 at 9–19).
On May 29, 2013, the Court remanded the action to the Social Security
Administration (“SSA”) strictly on the basis of one of those alleged errors―the
ALJ’s failure to discuss and appropriately weigh the opinions of Dr. John
Wuertz. (Dkt. 20 at 8–10, 14). Dr. Wuertz treated Plaintiff extensively and
made several findings supporting Plaintiff’s claims of disability: she was
wheelchair-bound; she was experiencing depression without improvement and
heard voices; her speech was impoverished; her attention, concentration,
judgment, and insight were limited; and she was disoriented and had retarded
psychomotor skills. (Id. at 8–9). Although Dr. Wuertz was a treating source,
the ALJ failed to explicitly mention, evaluate, or assign weight to Dr. Wuertz’s
findings. (Id. at 8).
On appeal to this Court, the government argued that the ALJ considered
Dr. Wuertz’s findings—and even addressed them in the opinion as being
contradicted by other medical evidence in the record—but merely failed to
explicitly mention Dr. Wuertz. (Id. at 9; Dkt. 16 at 12–14). The government
conceded that the ALJ’s failure to explicitly mention Dr. Wuertz was error but
argued that the Court could confidently conclude that the ALJ would reach the
same decision on remand and that the error therefore was harmless. (Dkt. 16
at 13–14). The Court disagreed and found instead that the ALJ had not—at
least in rendering her opinion—engaged in a complete analysis of Dr. Wuertz’s
findings. (Dkt. 20 at 9–10). The Court suggested the ALJ might assign “great
weight” to Dr. Wuertz’s findings and find Plaintiff disabled. (See id. at 10). In
so doing, the Court also necessarily acknowledged the possibility the ALJ’s
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analysis and conclusions would be no different but that she would explain
them more thoroughly in her written opinion. (See id.).
II.
Discussion
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. 2412(d), allows a
plaintiff’s attorney to recover reasonable fees from the government where: (1)
the plaintiff is a prevailing party; (2) the government is not “substantially
justified” in its position; (3) no “special circumstances” make an award unjust;
and (4) the fee application is timely and supported by an itemized statement.
28 U.S.C. 2412. On Plaintiff’s motion, the parties dispute two matters:
whether the government was substantially justified in denying Plaintiff’s
original petition for benefits and opposing Plaintiff’s appeal to the District
Court, and whether fees (if allowed at all) may be awarded directly to Plaintiff’s
attorney or must be granted to Plaintiff herself.
A. Was the government’s position substantially justified?
In response to an EAJA fee motion, the government bears the burden of
proving that its position—which includes both the ALJ’s decision and the
government’s defense of that decision on judicial review—was substantially
justified. Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009) (citing Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). The government’s position is
substantially justified if it has a reasonable basis in fact and law and there is a
reasonable connection between the facts and the legal theory the government
has advanced. Stewart, 561 F.3d at 683. The government’s position may well
be substantially justified even though the District Court has remanded the
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action for further proceedings. Cummings v. Sullivan, 950 F.2d 492, 498 (7th
Cir. 1991) (citing Underwood, 487 U.S. at 569). This is particularly true where,
as here, the District Court has remanded the action because, although the
ALJ’s decision could be rationally supported by the evidence, her written
opinion does not clearly illustrate the basis for a rationally supported decision.
See, e.g., Cunningham v. Barnhart, 440 F.3d 862 (7th Cir. 2006). As another
judge in this District put it, the government’s position is not rendered
substantially unjustified because of “inadequate explanations by the ALJ of
what might well be a reasonable bottom-line decision.” Taylor v. Astrue, 2010
WL 5391543, at *3 (S.D. Ind. Dec. 22, 2010).
Cunningham is instructive. In that case, the district court remanded the
action to the SSA on grounds that the ALJ failed to thoroughly describe
medical evidence it relied on in discounting the opinions of a treating physician
and discounted the plaintiff’s complaints of certain symptoms and limitations
without expressly addressing the plaintiff’s credibility or medical evidence
supporting those complaints. Cunningham, 440 F.3d at 863. The Court of
Appeals distinguished that case from Golembiewski v. Barnhart, 382 F.3d 721
(7th Cir. 2004), in which fees were awarded after the ALJ committed a laundry
list of errors, including completely failing to discuss the plaintiff’s credibility,
ignoring some pieces of medical evidence and mischaracterizing others, and
arguing on appeal—and contrary to SSA policy and judicial precedent—that the
omitted credibility determination could be implied. See Cunningham, 440 F.3d
at 864; see also Golembiewski v. Barnhart, 322 F.3d 912, 915–16 (7th Cir.
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2003) (ordering remand to SSA following judicial review). In denying the
plaintiff’s motion for fees, the Cunningham court noted that “[i]t was not that
the ALJ failed to engage in any credibility determination as in Golembiewski;
rather, the ALJ failed to connect all the dots in his analysis.” Id. at 865.
The Court of Appeals also denied a request for fees in Bartrom v.
Barnhart, 33 Fed.Appx. 818 (7th Cir. 2002), another matter factually similar to
this one.1 In Bartrom, the Court of Appeals remanded the action to the SSA
because “the ALJ failed to adequately address certain medical evidence and
opinions proffered by [the plaintiff]’s treating psychiatrist . . . .” Id. at 819. In
its response to the fee motion, the court explained:
We recognized that the ALJ did discuss some of the evidence in the
record that tended to undermine Dr. Cruz-Diaz’s opinions.
However, we remanded the case because we were uncertain how
much weight the ALJ gave to this evidence and, therefore, we could
not adequately determine why the judge believed that such
evidence outweighed several of Dr. Cruz-Diaz’s undisputed
statements suggesting that Bartrom is totally disabled.
Id. In denying attorney’s fees, the court added:
the ALJ could well have reached the same conclusion on remand
as he made in his original decision, provided that he explained the
basis of his ruling more thoroughly. Because it would have been
reasonable for the ALJ to deny benefits on the basis of the record
before him, it was entirely reasonable for the government to defend
the merits of the decision itself.
Id. at 820 (internal citations omitted).
Although not precedential, see 7th Cir. R. 32.1, the Court finds Bartrom’s reasoning
persuasive and cites it here in light of its factual similarity to this matter and its
consistency with Cunningham.
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The matter before the Court falls far closer to Cunningham and Bartrom
than it does to Golembiewski. The parties agree that the ALJ erred when she
failed to explicitly address Dr. Wuertz’s findings in her opinion. (See Dkt. 20 at
8). However, as Plaintiff concedes, “‘[a] position can be substantially justified
even though it is not correct.’” (Dkt. 23 at 2 (quoting Underwood, 487 U.S. at
566 n.2)). The Court’s Entry on Judicial Review acknowledged both that the
ALJ’s written analysis was insufficient and that the ALJ might arrive back at
her original conclusion after a more thorough review. (See Dkt. 20 at 10).
Through Cunningham and Bartrom, the Seventh Circuit has intimated that
such an error, standing alone, does not push an ALJ’s position short of
substantial justification and that the government is substantially justified in
defending such an error. See Cunningham, 440 F.3d at 865; Bartrom, 33
Fed.Appx. at 820. Accordingly, the Court finds both that the ALJ’s ruling and
the government’s litigation position were substantially justified and that the
EAJA does not entitle Plaintiff to recover attorney’s fees.
B. Does the EAJA allow the court to award fees directly to Plaintiff’s
attorney?
The government further argues that the EAJA does not allow the Court,
as Plaintiff requests, to award fees directly to Plaintiff’s attorney (as opposed to
issuing them to Plaintiff herself and leaving counsel to collect the fees).
Whereas the Court has determined the EAJA does not authorize any award of
attorney’s fees in this matter, the issue is moot.
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III.
Conclusion
For the foregoing reasons, Plaintiff’s motion for an award of attorney’s
fees is DENIED.
SO ORDERED the 24th day of September, 2013.
__________________________
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Served electronically on all ECF-registered counsel of record.
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