BUTTERFIELD v. BARNHART

Filing 29

MEMORANDUM. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 5/4/11. 5/5/11 ENTERED AND COPIES MAILED, E-MAILED.(er, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

LYDIA BUTTERFIELD,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.

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CIVIL ACTION

NO. 06-0603

MEMORANDUM
BUCKWALTER, S.J.

May 4, 2011

Currently pending before the Court is Plaintiff Lydia Butterfield’s Motion for Attorney
Fees Under the Equal Access to Justice Act and Defendant the Commissioner of Social
Security’s (“the Commissioner”) Opposition thereto. For the following reasons, the Motion is
denied.
I.

PROCEDURAL HISTORY
On July 12, 2002, fifty-five year old Plaintiff Lydia Butterfield filed for Disability

Insurance Benefits (“DIB”), pursuant to Title II of the Social Security Act, 42 U.S.C. § 301, et
seq., alleging disability since February 6, 2002. The state agency denied her claim and, following
Plaintiff’s timely request for review, an administrative hearing was held before Administrative
Law Judge (“ALJ”) Diane C. Moskal. ALJ Moskal denied benefits in a decision dated August
11, 2003, and the Appeals Council subsequently rejected Plaintiff’s request for review. Plaintiff
then initiated a civil action in this Court, which reversed the decision of the Commissioner and

remanded the case, pursuant to sentence four of 42 U.S.C. § 405(g),1 on three grounds: (1)
failure to include Plaintiff’s mild limitation in concentration, persistence, or pace in the residual
functional capacity assessment (“RFC”); (2) failure to pose a hypothetical question to the
vocational expert (“VE”) that included Plaintiff’s mental impairment; and (3) failure to
specifically address Plaintiff’s credibility.
After a second hearing, ALJ Moskal denied Plaintiff’s claims via a decision dated July
18, 2005. On appeal to federal court, however, Defendant voluntarily requested remand because
portions of the recording of the second hearing were inaudible. Accordingly, this Court
remanded the case, on April 10, 2005, pursuant to sentence six of 42 U.S.C. § 405(g).2

1

Sentence four of 42 U.S.C. § 405(g) provides that, “[t]he court shall have power to
enter, upon the pleadings and transcript of record, a judgment affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g).
2

Sentence six of 42 U.S.C. § 405(g) states as follows:

The court may, on motion of the Commissioner of Social Security made for good
cause shown before the Commissioner files the Commissioner’s answer, remand
the case to the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order additional evidence
to be taken before the Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding; and the
Commissioner of Social Security shall, after the case is remanded, and after
hearing such additional evidence if so ordered, modify or affirm the
Commissioner’s findings of fact or the Commissioner’s decision, or both, and
shall file with the court any such additional and modified findings of fact and
decision, and, in any case in which the Commissioner has not made a decision
fully favorable to the individual, a transcript of the additional record and
testimony upon which the Commissioner’s action in modifying or affirming was
based.
42 U.S.C. § 405(g).
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A new ALJ, Paula F. Garrety, then held a third administrative hearing. On September 17,
2007, ALJ Garrety denied the claims, making explicit findings under the five-step sequential
analysis codified in 20 C.F.R. § 404.1520. First, the ALJ determined that although Plaintiff did
not engage in substantial gainful activity either from the alleged onset of her disability through
2005 or since March 2007, Plaintiff had, in fact, engaged in substantial gainful activity from
2005 through March 2007 by caring for her five great-grandchildren. (R. 23.)3 Second, the ALJ
found that Plaintiff had severe impairments in the form of a chronic lumbar strain/sprain status
post injury in 2002, together with multiple non-severe impairments, as follows: depression, left
elbow impairment, left knee impairment, and left foot tenosynovitis. (Id.) The ALJ noted a
significant gap in treatment for physical pain from 2002 to 2005, and credited the report of
consultative examiner Dr. Stanton Bree, which revealed that Plaintiff had no functional
limitations. (Id.) As to Plaintiff’s mental impairments, the ALJ acknowledged the previous
ALJ’s findings, reviewed Plaintiff’s mental health evaluations, and considered Plaintiff’s
testimony, prior to reaching her ultimate determination that Plaintiff had only a mild limitation in
concentration, persistence, or pace. (R. 24-27.) The ALJ went on to partially credit Plaintiff’s
testimony about the limitations caused by her medically determinable mental impairments, but
found Plaintiff’s statements concerning the intensity, persistence, and limiting effects of these
impairments not entirely credible. (R. 26-27.) In making this determination, however, the ALJ
offered no discussion of the supporting statements provided by Plaintiff’s mother or daughter.
Third, the ALJ declined to find that Plaintiff’s impairments, either individually or in
combination, met or medically equaled one of the Listings of Impairments in Appendix 1,
3

The court uses “R. [page number]” to reference the administrative record in this matter.
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Subpart P, Part 202 of 20 C.F.R. (R. 28.) Fourth, the ALJ concluded that Plaintiff had the
residual functional capacity to perform light work that would accommodate mild deficits in
concentration, persistence, or pace, secondary to a mild cognitive impairment. (R. 31.) Finally,
based on the testimony of the VE who found that Plaintiff could perform past relevant work as a
housekeeper, the ALJ determined that Plaintiff had not been under a disability from February 6,
2002 through the date of the decision. (Id.) Accordingly, the ALJ declined Plaintiff’s request for
benefits.
Plaintiff again sought review from this Court. On July 15, 2010, United States Magistrate
Judge Timothy R. Rice issued a Report and Recommendation (“R&R”) rejecting the majority of
Plaintiff’s claims, but nonetheless suggesting that the case be remanded for further review.
Specifically, Judge Rice found no merit to Plaintiff’s allegation that the ALJ failed to adjudicate
her claim de novo. Moreover, Judge Rice found substantial evidence to support the ALJ’s
findings that: (1) Plaintiff engaged in substantial gainful activity as a babysitter from 2005
through March 2007; (2) Plaintiff did not have a demonstrable visual impairment of glaucoma
and bilateral cataracts; and (3) the medical opinions from Plaintiff’s treating providers were not
entitled to significant weight. Finally, Judge Rice determined that the ALJ had erred by failing to
address the report of Plaintiff’s daughter, Parthenia Parker, and the undated letter from Plaintiff’s
mother, Charlotte Easton. Given this single error, Judge Rice proposed remand for consideration
of these statements and their impact on the ALJ’s credibility and RFC determinations.
Plaintiff thereafter raised four Objections to the R&R: (1) the ALJ’s finding that Plaintiff
engaged in substantial gainful activity from 2005 through March 2007 was not supported by
substantial evidence; (2) the ALJ erred by failing to adjudicate the claim de novo; (3) the ALJ
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erred by failing to consider all of Plaintiff’s impairments; and (4) the ALJ erred by failing to
provide a legally acceptable explanation for rejecting evidence favorable to Plaintiff’s claim.
This Court found no merit to any of the Objections and remanded the case solely on the bases
identified in the R&R. Subsequently, the Court denied Plaintiff’s request for reconsideration.
On March 2, 2011, Plaintiff filed a Motion for Attorney’s Fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412. Defendant filed a brief in opposition to that Motion,
claiming that the Commissioner was substantially justified in his defense of the case. On March
20, 2011, Plaintiff submitted a Reply Brief, making this matter ripe for consideration.
II.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2412(b):
Unless expressly prohibited by statute, a court may award reasonable fees and
expenses of attorneys, in addition to the costs which may be awarded pursuant to
subsection (a), to the prevailing party in any civil action brought by or against the
United States or any agency or any official of the United States acting in his or her
official capacity in any court having jurisdiction of such action. The United States
shall be liable for such fees and expenses to the same extent that any other party
would be liable under the common law or under the terms of any statute which
specifically provides for such an award.

Id. The United States Supreme Court has explained that “[t]he most useful starting point for
determining the amount of a reasonable fee is the number of hours reasonably expended on the
litigation multiplied by a reasonable hourly rate. This calculation provides an objective basis on
which to make an initial estimate of the value of a lawyer’s services.” Hensley v. Eckerhart, 461
U.S. 424, 433 (1983).
The EAJA permits awards of attorney’s fees only to the extent they are reasonable.
Citizens Council of Del. Cnty. v. Brinegar, 741 F.2d 584, 594-95 (3d Cir. 1984). The party

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seeking attorney’s fees thus has the burden to prove that its request is reasonable. Rode v.
Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990); Walton v. Massanari, 177 F. Supp. 2d 359,
361 (E.D. Pa. 2001). “To meet its burden, the fee petitioner must ‘submit evidence supporting
the hours worked and rates claimed.’” Rode, 892 F.2d at 1183 (quoting Hensley, 461 U.S. at
433). A party claiming entitlement to attorney fees “should make a good-faith effort to exclude
from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer
in private practice ethically is obligated to exclude such hours from his fee submission.”
Hensley, 461 U.S. at 434. When evaluating a request for fees, the Court should similarly exclude
hours that were not reasonably expended. Rode, 892 F.2d at 1183. Although the district court
retains discretion to adjust the amount of the fee award, Barry v. Astrue, No. CIV.A.05-1825,
2007 WL 2022085, at *5 (E.D. Pa. July 9, 2007), it is well-settled that “the district court may not
award less in fees than requested unless the opposing party makes specific objections to the fees
requested.” United States v. Eleven Vehicles, Their Equip. & Accessories, 200 F.3d 203, 211
(3d Cir. 2001).
III.

DISCUSSION
The present Motion seeks Plaintiff’s counsel fees expended during the litigation of this

civil action. Defendant does not challenge any particular portion of these fees as unreasonable,
but rather opposes the fee award in its entirety because the Commissioner’s position was
“substantially justified.”
Under the Equal Access to Justice Act, prevailing parties in civil actions brought by or
against the United States are entitled to an award of attorneys fees and expenses “unless the court
finds that the position of the United States was substantially justified or that special
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circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A) (2006). “Substantial
justification represents a middle ground between automatically awarding attorney’s fees and
awarding attorney’s only when the government’s position was frivolous.” Magwood v. Astrue,
594 F. Supp. 2d 557, 559 (E.D. Pa. 2009) (citing Washington v. Heckler, 756 F.2d 959, 961 (3d
Cir. 1985)). According to the Supreme Court, “substantially justified” means “‘justified in
substance or in the main’ – that is, justified to a degree that could satisfy a reasonable person” as
opposed to “‘justified to a high degree.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988). As
further noted by the Third Circuit, “‘[d]etermining whether the government’s position is
substantially justified for the resolution of an EAJA claim has proved to be an issue of
considerable conceptual and practical difficulty.’” Morgan v. Perry, 142 F.3d 670, 685 (3d Cir.
1998) (quoting Roanoke River Basin Assoc. v. Hudson, 991 F.2d 133, 138 (4th Cir. 1993)). “A
position can be justified even though it is not correct, and . . . can be substantially (i.e. for the
most part) justified if a reasonable person could think it is correct, that is, if it has a reasonable
basis in law and fact.” Pierce, 487 U.S. at 566 n.2.
In light of these standards, a Commissioner alleging “substantial justification” must
show: “(1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the
theory it propounded; and (3) a reasonable connection between the facts alleged and the legal
theory advanced.” Morgan, 142 F.3d at 684. Where a case “turns on an unsettled or ‘close
question of law,’ . . . the government usually will be able to establish that its legal theory was
‘reasonable,’ even if it was not ultimately accepted as a legal rule by the courts.” Washington,
756 F.2d at 961-62. “When the government’s legal position clearly offends established
precedent, however, its position cannot be said to be ‘substantially justified.’” Id. at 962.
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Ultimately, the Commissioner bears the burden of proof on this issue. Morgan, 142 F.3d at 684.
No Supreme Court case has explicitly stated what the court’s proper focus should be
when considering whether the Commissioner was substantially justified in opposing a social
security remand. The Third Circuit, however, has adopted the position of the Fourth and Seventh
Circuits and held that “when determining whether the government’s position is substantially
justified, ‘we must . . . arrive at one conclusion that simultaneously encompasses and
accommodates the entire civil action.’” Williams v. Astrue, 600 F.3d 299, 302 (3d Cir. 2009)
(quoting Jackson v. Chater, 94 F.3d 274, 275 (7th Cir. 1996); citing Roanoke River Basin, 991
F.2d at 139). “‘[A] party’s success on a single claim will rarely be dispositive of whether the
government’s overall position was substantially justified.’” Id. (quoting Stewart v. Astrue, 561
F.3d 679, 683 (7th Cir. 2009)). Thus, where the claimant is a “prevailing party” only insofar as he
or she has obtained remand of the case, the proper scope of the inquiry is “whether the
Commissioner was substantially justified in opposing the remand – not on the ultimate question
of disability.” Corona v. Barnhart, 431 F. Supp. 2d 506, 513 (E.D. Pa. 2006).
In the present case, Plaintiff sought review of the third ALJ decision on seven separate
grounds: (1) the ALJ failed to adjudicate her claim de novo; (2) the ALJ improperly found that
Plaintiff engaged in substantial gainful activity from 2005 through March 2007; (3) the ALJ
failed to consider Plaintiff’s visual impairment; (4) the ALJ failed to adequately consider
Plaintiff’s physicians’ opinions; (5) the ALJ failed to address the opinion of a vocational
rehabilitation counselor; (6) the ALJ failed to properly evaluate Plaintiff’s credibility and the
statements of other lay witnesses; and (7) the ALJ failed to properly determine Plaintiff’s residual
functional capacity. Upon review, the Magistrate Judge issued a thorough and well-reasoned
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opinion rejecting Plaintiff’s first five arguments, agreeing with Plaintiff on argument six (the
ALJ’s failure to consider and discuss the statements from Plaintiff’s mother and daughter), and
refraining from addressing argument seven. Specifically, as to argument six, the Magistrate
Judge found as follows:
The ALJ must consider and weigh all relevant evidence, including nonmedical evidence, Burnett, 220 F.3d at 122. Non-medical evidence includes
information from spouses, parents, other relatives, friends, and neighbors. See
SSR 06-03p, 2006 WL 2329939, at *2, *6.
An ALJ cannot ignore information from non-medical sources on a belief
that the information adds nothing more than stating the claimant’s testimony is
truthful and would be discounted for the same reasons. . . . Opinions from family
members provide insight into the severity of the claimant’s impairments and how
the impairments affect the claimant’s RFC. . . .
In the disability function report, Butterfield’s daughter, Parthenia Parker,
stated before Butterfield’s injuries, Butterfield could walk long distances, do
housework, and could work outside of the house. R. 208. Now, Parker claims,
the amount of housework and the length of Butterfield’s walks depends on how
Butterfield feels. R. 207, 209. Parker also stated Butterfield is no longer as
active, and seems more depressed. R. 209, 214.
The undated letter from Butterfield’s mother, Charlotte Easton, stated
Butterfield has had a lot of pain and suffering throughout her life, talked to
herself, was very depressed, and “physically just couldn’t function.” R. 121.
Easton also stated after Butterfield’s 2002 back injury, Butterfield was not herself,
cried most of the time, stayed to herself, and Easton had to help her by performing
household chores. R. 120-21.
The ALJ failed to address Parker’s report and Easton’s letter. See R. 2031. The report and letter discussed the effect Butterfield’s impairments have had
on her ability to function, and therefore may bolster Butterfield’s testimony or
affect Butterfield’s RFC. See Zuvich, 2008 WL 4401019, at *5-7. On remand,
the ALJ must address Parker’s report and Easton’s letter. See Burnett, 220 F.3d at 122; see also
Eskridge v. Astrue, 569 F. Supp. 2d 424, 439-40 (D. Del. 2008) (remand for failure to mention
statements of claimant’s family and friends).
(R&R 26-28 (footnote omitted).)

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Subsequently, Plaintiff filed objections re-raising her claims that: (1) the ALJ’s finding
that Plaintiff engaged in substantial gainful activity from 2005 through March 2007 was not
supported by substantial evidence; (2) the ALJ erred by failing to adjudicate the claim de novo;
(3) the ALJ erred by failing to consider all of Plaintiff’s impairments; and (4) the ALJ erred by
failing to provide a legally acceptable explanation for rejecting evidence favorable to Plaintiff’s
claim. This Court undertook a full review of the record, found no error in the Magistrate Judge’s
R&R, and, as a result, remanded only on the bases identified in the R&R.
In light of this history, the Court has little trouble concluding that the Commissioner had
a reasonable basis for defending against Plaintiff’s overall request for remand under the Act.
Two separate adjudicators concluded that the ALJ properly found that none of Plaintiff’s claims
of error – but for the failure to address lay witnesses – had any merit. Indeed, as the Magistrate
Judge noted, the ALJ explicitly cited to substantial medical evidence to support some limitations
in Plaintiff’s residual functional capacity, but not enough to preclude all forms of substantial
gainful activity. Ultimately, both the Magistrate Judge and this Court found that the ALJ
appropriately concluded, based on substantial evidence, that Plaintiff could perform a wide-range
of light work with the mild deficit in concentration, persistence, and pace. Because reasonable
minds could, and in fact did, conclude that the Commissioner’s position on this issues was
correct, the Court must deem its overall position as to remand substantially justified.4

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Although Plaintiff attempts to relitigate the merits of these individual issues via the
present Motion, the Court declines to engage in such a discussion. Both the R&R and this
Court’s opinion with respect to Plaintiff’s objections substantively addressed these claims.
Having already found Plaintiff’s position on these matters to be incorrect, the Court need make
little stretch in logic to deem the Commissioner’s contrary position on them substantially
justified.
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The Court thus turns to the narrower question of whether the Commissioner was
substantially justified in defending the ALJ’s failure to address the statements from Plaintiff’s
mother and daughter. In opposition to Plaintiff’s Request for Review, the Commissioner first
argued that the record generally need only reflect the consideration of opinions from medical
sources who are not “acceptable medical sources” and from “non-medical sources” who saw the
claimant in their professional capacity, neither of which applied to the lay statements at issue.
The Magistrate Judge correctly pointed out, however, that this position was not well-founded
since the law requires the ALJ to consider and weigh all relevant evidence, including nonmedical evidence from spouses, parents, other relatives, friends, and neighbors. Burnett v.
Comm’r of Soc. Sec., 220 F.3d 112, 122 (3d Cir. 2000); SSR 06-03p, 2006 WL 2329939, at *2
(S.S.A. Aug. 9, 2006). Indeed, social security jurisprudence explicitly states that in order to fully
and thoroughly evaluate a claimant’s testimony and allow for meaningful appellate review of the
decision, an ALJ must expressly consider and address the impact of testimony from lay
witnesses. See Petro v. Astrue, No. CIV.A.09-2900, 2010 WL 4104582, at *12 (E.D. Pa. Aug.
31, 2010) (citing Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir. 1983)).
Had the Commissioner’s argument on the issue stopped there, the Court would have been
inclined to find that its position was not substantially justified. The Commissioner, however,
went on to raise a second argument in defense of the ALJ’s failure to consider the lay witness
statements – harmless error. Citing to several cases addressing this harmless error standard, the
Commissioner contended that “[t]hough the ALJ did not explicitly discuss the evidence at-issue,
it is not fatal to her decision because the ALJ fully explained the basis for her decision, which
was supported by the record as a whole.” (Def.’s Resp. Pl.’s Req. for Review 26-27.)
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This contention has significantly more merit. The harmless error standard is wellestablished in our jurisprudence. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005)
(refusing to remand where stricter compliance with social security ruling would not have changed
the outcome of the case). In many cases, courts have found that an ALJ’s failure to address lay
opinion testimony, although technically in violation of applicable legal standards, did not require
remand since the testimony would not have changed the outcome of the case. See, e.g., Bailey v.
Astrue, No. CIV.A.07-4595, 2009 WL 577455, at *11 (E.D. Pa. Mar. 4, 2009) (“In this case, the
ALJ did not explicitly address the testimony of plaintiff’s mother in the decision. However, the
ALJ examined the medical evidence (which he found does not support the plaintiff’s subjective
complaints of pain and limitations) and weighed that against the plaintiff’s testimony. As a
result, the ALJ found plaintiff’s complaints only partially credible. . . . plaintiff’s mother’s
testimony would not have changed the ALJ’s decision, as it was cumulative and merely reiterated
the fact that plaintiff experienced pain which she observed when he visited her.”); Thompson v.
Astrue, No. CIV.A.07-2989, 2009 WL 7007996, at *15 (E.D. Pa. Jan. 30, 2009) (holding that
where discussion of lay witness’s letter would not have changed the outcome of the case, failure
of the ALJ to address it was harmless error); DeStefano v. Astrue, No. CIV.A.07-3750, 2009 WL
113744, at *10 (E.D. Pa. Jan. 14, 2009) (noting that the ALJ’s failure to address non-medical
testimony does not require remand where the medical evidence in the record supported the ALJ’s
RFC determination); Carnes v. Comm’r of Soc. Sec., No. CIV.A.08-99, 2008 WL 4810771, at *5
(W.D. Pa. Nov. 4, 2008) (noting that where mother’s testimony was essentially cumulative of
plaintiff’s testimony and further discussion of it would not have changed the outcome, failure to
discuss the mother’s testimony was harmless error that did not require a remand); Combs v.
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Barnhart, No. CIV.A.03-5526, 2005 WL 1995457, at * (E.D. Pa. Aug. 16, 2005) (refusing to
remand on harmless error grounds where ALJ failed to consider testimony of claimant’s wife and
there was substantial evidence to support the credibility determination); Cerar v. Sec’y of the
Dep’t of Health & Human Servs., No. CIV.A.93-6973, 1995 WL 44551, at *4 (E.D. Pa. Feb. 1,
1995) (“It is true that the ALJ failed to address the credibility of the claimant’s husband
explicitly, but this alone would not require remand, because the ALJ demonstrated that he
considered and analyzed all the medical evidence and plaintiff’s subjective testimony concerning
pain. The plaintiff’s testimony was credited by the ALJ to the extent consistent with medical
testimony; crediting the husband’s testimony corroborating the plaintiff would not have affected
the ALJ’s decision.”).
In the case at bar, the evidence from Plaintiff’s daughter and mother provided minimal
support for Plaintiff’s position. Plaintiff’s daughter noted that before her injuries, Plaintiff could
walk long distances, do housework, and work outside the house, but, since her injuries, the
amount of housework and the length of her walks depended on how she felt. (R. 207-09.)
Overall, she remarked that Plaintiff was no longer as active, and seemed more depressed. (Id. at
209, 214.) Plaintiff’s mother commented that Plaintiff was depressed and physically couldn’t
function, and that after her 2002 back injury, she was not herself, cried most of the time, stayed
to herself, and needed help with household chores. (R. 120-21.)
Although failing to explicitly address these statements – as required by controlling
jurisprudence – the ALJ cited to substantial evidence to support her credibility and RFC
determinations. Specifically, the ALJ provided a full explanation, supported by the record, for
Plaintiff’s lack of a disabling mental impairment. Further, the ALJ fully addressed Plaintiff’s
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claimed back impairment and associated pain, and cited to numerous pieces of medical evidence
that undermined a finding of disability. The ALJ also referenced Plaintiff’s reported activities of
daily living – including caring for her ill sister for two to three hours per day from March to June
2004, ushering in church, and providing extensive care for her five great grand-children ranging
in age from thirteen to under one – and noted that they were inconsistent with her alleged
functional limitations. Ultimately, the ALJ offered a thorough and well-reasoned basis for not
fully crediting Plaintiff’s subjective complaints of pain and limitation and for finding that
Plaintiff retained the residual functional capacity to perform light work that would accommodate
mild deficits in concentration, persistence, or pace, secondary to a mild cognitive impairment.
(R. 31.)
Based on this record, the Commissioner was substantially justified in opposing the
remand despite the ALJ’s error. Although the ALJ was required to explicitly offer a credibility
analysis of the lay witness statements, the Commissioner justifiably believed, under the
deferential standard accorded to ALJ credibility determinations,5 that statements from Plaintiff’s
mother and daughter statements would not have changed the ALJ’s decision, as they were
cumulative and merely reiterated Plaintiff’s complaints of depression and pain. Undoubtedly, the
Commissioner’s position was well-grounded in law regarding the harmless error analysis, and
can hardly be said to have offended any established precedent. Moreover, the Commissioner had
a reasonable basis in truth for the facts alleged, given the plethora of medical evidence
undermining Plaintiff’s testimony and the lay witnesses’ corroborating statements. Finally, the
Commissioner established a reasonable connection between the alleged facts and the harmless
5

See Weber v. Massanari, 156 F. Supp. 2d 475, 486 (E.D. Pa. 2001).
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error legal theory.
In short, despite the contrary position adopted by the Magistrate Judge, the Commissioner
had a sound legal and factual basis for believing that the ALJ’s failure to address the lay witness
statements was inconsequential and, thus, did not warrant remand. See Williams v. Astrue, 600
F.3d 299, 302 (3d Cir. 2009) (holding that where a particular error is inconsequential – i.e.,
where an ALJ may reach the same conclusion on remand based on other evidence in the record –
the government’s position may be deemed substantially justified). Given this finding, the Court
must deem the Commissioner’s position, in this case, to be substantially justified and, in turn,
deny the award of attorney’s fees.

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