Logsdon v. Commissioner of Social Security

Filing 30

ORDER Signed by Judge David J. Hale on 4/21/2021: The Commissioner's 28 objection is OVERRULED. The 27 Report and Recommendation of Magistrate Judge Colin H. Lindsay is ADOPTED in full and INCORPORATED by reference herein. Logsdon's 23 motion for attorney fees is GRANTED. Logsdon is awarded attorney fees and costs in the amount of $6,041.00. All issues having been resolved, this matter remains CLOSED and STRICKEN from the Court's active docket. cc: Counsel (DLW)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
MARY MALONE LOGSDON,

Plaintiff,

v.

Civil Action No. 3:16-cv-759-DJH-CHL

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

* * * * *
ORDER
The Court previously entered judgment in favor of Plaintiff Mary Malone Logsdon and
remanded this disability-benefits case to the Commissioner of Social Security on the ground that
the administrative law judge violated an applicable Social Security ruling by failing to consider
Logsdon’s lack of insurance. (Docket No. 22; see D.N. 21, PageID # 587-88 & n.2) After the
judgment became final, Logsdon moved for an award of attorney fees and costs pursuant to the
Equal Access to Justice Act. (D.N. 23) The Court referred Logsdon’s motion to United States
Magistrate Judge Colin H. Lindsay for report and recommendation. (D.N. 26) Judge Lindsay
issued his report and recommendation on July 2, 2019, recommending that the motion be granted
and that Logsdon be awarded $6,041.00 in attorney fees and costs. (D.N. 27) The Commissioner
objected (D.N. 28), and Logsdon responded to the objection (D.N. 29). Due to an administrative
error, and without further motion or notice by the parties, those filings were not timely addressed.
For the reasons explained below, the Court will now overrule the Commissioner’s objection, adopt
the magistrate judge’s recommendation, and grant Logsdon’s motion.
I.
The EAJA provides for an award of fees and costs upon timely application by the
“prevailing party” in a civil action “brought by or against the United States . . . unless the court

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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). In this case, the only disputed factor is
whether the government’s position was substantially justified. Judge Lindsay found that it was
not, observing that “[a]n ALJ’s failure to follow agency rules and regulations is almost[] by
definition[] lacking a reasonable basis in law, and therefore, not substantially justified.” (D.N. 27,
PageID # 624)
“[T]he [g]overnment bears the burden of proving that a given position was substantially
justified, and it discharges that burden by proving that the position had a reasonable basis both in
law and fact.” Glenn v. Comm’r of Soc. Sec., 763 F.3d 494, 498 (6th Cir. 2014) (quoting DeLong
v. Comm’r of Soc. Sec., 748 F.3d 723, 725-26 (6th Cir. 2014)). For purposes of the EAJA, the
“position of the United States” includes not only “the position taken by the United States in the
civil action,” but also “the action or failure to act by the agency upon which the civil action is
based.” § 2412(d)(2)(D).
The Commissioner argues that his “success in arguing several of the points that [Logsdon]
raised supports a finding that the government was substantially justified in defending the decision
as a whole.” (D.N. 28, PageID # 630) In support, he cites an unpublished Sixth Circuit decision
from 2002 in which the court concluded that because “the government was successful in defending
the Commissioner’s decision on several issues, the government’s position was substantially
justified and the denial of attorney’s fees under the EAJA was not an abuse of discretion.” (Id.
(quoting Green v. Comm’r of Soc. Sec., 52 F. App’x 758, 759 (6th Cir. 2002)))
As Logsdon points out, however (see D.N. 29, PageID # 633-34), the Commissioner’s
argument ignores both the nature of the ALJ’s error and the Sixth Circuit’s more recent published
statement that the “‘substantially justified’ standard” is not merely “a matter of comparing the

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number of successful claims to unsuccessful claims in a single appeal.” Glenn, 763 F.3d at 498.
“Rather, the question is whether the government’s litigating position in opposing remand is
‘justified to a degree that could satisfy a reasonable person’ and whether it was supported by law
and fact.” Id. at 498-99 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). Here, “the
government defend[ed] an ALJ decision that was reached by selectively considering the
evidence”—a position the Sixth Circuit has found “not substantially justified.”1 Id. at 498 (citing
Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004)). An award of fees and costs is therefore
appropriate. See § 2412(d)(1)(A).
II.
For the reasons set forth above, and the Court being otherwise sufficiently advised, it is
hereby

As the Court explained in its Memorandum Opinion and Order granting Logsdon’s request for a
new hearing:
The record shows that the ALJ discounted Logsdon’s credibility in part
because she did not undergo knee surgery, visit the emergency room, or have
extended hospital stays for any condition. But the ALJ “must not draw any
inferences about an individual’s symptoms and their functional effects from a
failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide . . . that may explain . . . failure to seek
medical treatment.” Although it appears that the ALJ considered Logsdon’s
testimony that she did not like going to see doctors and feared surgery, there is no
mention in the ALJ’s opinion of Logsdon’s alleged lack of insurance and inability
to afford certain treatments. In fact, medical records show that when Logsdon’s
arthritis worsened, a doctor felt that physical therapy would be beneficial[,] but
Logsdon was unable to afford it because she lacked insurance. . . . Given the ALJ’s
repeated references to Logsdon’s failure to obtain medical treatment and the
“conservative” care she obtained for her alleged conditions, the Court is unable to
conclude that his apparent failure to consider Logsdon’s lack of insurance was
harmless error.
(D.N. 21, PageID # 587-88 (first two omissions in original) (citations omitted); see also id., PageID
# 583 (explaining that remand was required “[b]ecause the ALJ relied heavily upon Logsdon’s
lack of treatment in concluding that her complaints regarding her conditions were less than
credible”))
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ORDERED as follows:
(1)

The Commissioner’s objection (D.N. 28) is OVERRULED. The Report and

Recommendation of Magistrate Judge Colin H. Lindsay (D.N. 27) is ADOPTED in full and
INCORPORATED by reference herein.
(2)

Logsdon’s motion for attorney fees (D.N. 23) is GRANTED. Logsdon is awarded

attorney fees and costs in the amount of $6,041.00.
(3)

All issues having been resolved, this matter remains CLOSED and STRICKEN

from the Court’s active docket.
April 21, 2021

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