Russell v. Commissioner of Social Security
Filing
24
OPINION AND ORDER denying 21 Motion for Attorney Fees. Signed by Judge Algenon L. Marbley on 8/19/2011. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Linda Sue Russell,
Plaintiff,
v.
:
:
:
Michael J. Astrue,
Commissioner of
Social Security,
Defendant.
Case No. 2:10-cv-266
:
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp
:
:
OPINION AND ORDER
On January 12, 2011, the Court adopted an unopposed Report
and Recommendation of the Magistrate Judge and remanded this
Social Security case to the Commissioner of Social Security for
further proceedings.
On February 12, 2011, plaintiff moved for
an award of attorneys’ fees under the Equal Access to Justice
Act, 28 U.S.C. §2412.
opposing the motion.
The Commissioner filed a memorandum
For the following reasons, the motion for
fees will be denied.
I.
The Equal Access to Justice Act, 28 U.S.C. §2412, provides,
in pertinent part, that the Court shall award to a prevailing
party other than the United States attorneys' fees and expenses
"unless the court finds that the position of the United States
was substantially justified or that special circumstances make an
award unjust."
The party seeking an award of such fees and expenses is
required to submit a fee application to the court within 30 days
of the date that the judgment became final and non-appealable.
The application must demonstrate that the party is a prevailing
party and is eligible to receive a fee award.
It must also
document the amount sought, including an itemized statement from
the attorney or attorneys involved, and must allege that the
position of the United States was not substantially justified.
The court is then required to determine, on the basis of the
record, whether the position of the United States was
substantially justified.
Attorneys' fees are limited to the rate
of $125.00 per hour "unless the court determines that an increase
in the cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings involved,
justifies a higher fee."
Once a petition has been filed alleging that the position of
the United States was not substantially justified, the United
States has the burden of demonstrating such justification.
See
Miller v. United States, 831 F. Supp. 1347, 1351 (M.D. Tenn.
1993) ("The burden lies with the government to demonstrate that
its position was substantially justified ...."); Weber v.
Weinberger, 651 F.Supp. 1379, 1388 (E.D. Mich. 1987) ("with
respect to an application for attorney's fees the Government has
the burden of showing that its position was substantially
justified."); see also Howard v. Heckler, 581 F. Supp. 1231, 1233
(S.D. Ohio 1984).
The question of whether the United States’
position is substantially justified is determined based upon the
standards set forth in Pierce v. Underwood, 487 U.S. 552 (1988).
In Pierce, the Court concluded that the phrase "substantially
justified" as used in the EAJA means justified "to a degree that
could satisfy a reasonable person."
Pierce, supra, at 565.
As
the Court noted, that test "is no different from the 'reasonable
basis both in law and fact' formulation adopted by the Ninth
Circuit and the vast majority of other Courts of Appeals that
have addressed this issue."
Id., citing, inter alia, Trident
Marine Construction, Inc. v. District Engineer, 766 F.2d 974 (6th
-2-
Cir. 1985). An agency decision that is not supported by
substantial evidence may still be one that has a reasonable basis
in law and fact.
1989).
Jankovich v. Bowen, 868 F.2d 867 (6th Cir.
Consequently, this Court is required to apply the
"reasonable basis in law and fact" test set forth in Trident
Marine Construction to this application for attorneys’ fees.
II.
The issue which led to the remand of this case centered
around the failure of the Administrative Law Judge to resolve an
apparent conflict between the testimony of the vocational expert
and the Dictionary of Occupational Titles, or DOT. At the
administrative hearing, the vocational expert, Dr. Oestreich, was
given a set of work functions that a hypothetical person could
perform and was asked if someone with those abilities could do
plaintiff’s past work as a data entry operator. He said no, and
also testified that his conclusion was consistent with the DOT.
Without obtaining any further clarification, the ALJ adopted her
own interpretation of the DOT and found that the DOT did not
preclude someone with the combination of limits on his or her
ability to bend, crouch and reach overhead from doing a data
entry job. The Magistrate Judge recommended a remand to resolve
this conflict, noting that if the ALJ were simply permitted to
rely on his or her interpretation of the DOT in every case, there
would be little need to obtain vocational testimony, and that it
would also conflict with Social Security Ruling 00-4p, which
requires an adjudicator to make a reasoned resolution of
conflicts between the vocational testimony and the DOT. As noted
the Commissioner did not object to that recommendation and the
Court ordered the remand.
Simply by filing the motion, plaintiff placed the burden on
the Commissioner to demonstrate the reasonableness of his
litigation position. Plaintiff’s supporting memorandum addressed
this issue only briefly, arguing, in essence, that because the
Court found that the ALJ committed a legal error, the
-3-
Commissioner’s defense of the ALJ’s decision could not have been
substantially justified.
There may, of course, be cases in which the legal error
committed by an ALJ is so obvious or egregious that a reasonable
argument against reversal or remand could not be made.
Certainly, the failure to follow a social security ruling, which
is binding on an ALJ, can make it difficult for the Commissioner
to take a reasoned stand against remand. See, e.g., Coleman v.
Astrue, 2011 WL 767884, *2 (N.D. Ohio February 11, 2011); cf.
McClanahan v. Comm’r of Social Security, 474 F.3d 830, 834 (6th
Cir. 2006). On the other hand, such rulings are sometimes
susceptible to varying interpretations and their applicability to
specific situations is not always clear. When that is so, the
Commissioner, by making a reasonable argument for a certain
interpretation of a regulation or a reasonable argument that it
does not apply to the case at bar, is not simply “defending a
decision that failed to follow well-established procedures and
precedent,” see Walker v. Astrue, 2010 WL 596451, *2 (N.D. Ohio .
February 16, 2010), but may well be substantially justified in
his litigation position. See also Gray v. Comm’r of Social
Security, 23 Fed.Appx. 436 (6th Cir. November 6, 2001) (declining
to award fees under the EAJA even though the case was remanded
“due to an error of law”).
In the Court’s view, that is precisely what happened in this
case. The legal error which formed the basis for remand turned
on the proper interpretation of SSR 00-4p. The Court located
little precedent on what an ALJ should do when, subsequent to the
administrative hearing, he or she believes that the vocational
expert has not testified consistently with the DOT even though
the vocational expert affirmatively stated that no inconsistency
existed. The Report and Recommendation cited to a district court
decision from Michigan which, while supportive, did not involve
precisely the same issue. Therefore, the Commissioner was
substantially justified in arguing for an interpretation of the
-4-
regulation that allowed the ALJ to use the DOT to refine or
clarify the vocational expert’s testimony, even if the Court
ultimately concluded that once the conflict became apparent, the
ALJ was required to develop the record further so that it
reflected some basis for preferring the DOT to the vocational
expert’s testimony apart from the fact that the two could not
easily be reconciled.
III.
For the foregoing reasons, the Court finds the
Commissioner’s litigation position in this case to have been
substantially justified. That being so, plaintiff’s application
for an award of attorneys’ fees under the Equal Access to Justice
Act (#21) is DENIED.
IT IS SO ORDERED.
S/Algenon L. Marbley
Algenon L. Marbley
United States District Judge
-5-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?