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Jackson v. Chater

August 20, 1996

SHIRLEY JACKSON, PLAINTIFF-APPELLANT,

v.

SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,*fn* DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 92 C 4089 John A. Nordberg, Judge.

Before COFFEY, MANION, and KANNE, Circuit Judges.

KANNE, Circuit Judge.

ARGUED JUNE 5, 1996

DECIDED AUGUST 20, 1996

This appeal requires that we determine whether the district court abused its discretion in denying a motion for attorney fees under the fee-shifting provision of the Equal Access to Justice Act ("EAJA"), 28 U.S.C. sec. 2412(d)(1)(A). The district court determined that the government's position in this litigation was substantially justified, and because we find this decision to have been a proper exercise of discretion, we affirm.

I.

In October 1990, Shirley Jackson applied for supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. secs. 1381a, 1382, claiming that she was disabled due to tightened muscles in her right arm. Jackson, who is left-handed, was at that time forty-one years old and had prior work experience as an assembler. The Secretary of Health and Human Services denied her application, and an administrative law judge conducted a hearing on Jackson's claim in September 1991. The ALJ issued his decision in January 1992, holding that although Jackson did have limited use of her right arm, there were plenty of jobs available in the marketplace with duties that she could perform. Jackson requested review by the Appeals Council, which denied review of the ALJ's decision.

Jackson subsequently filed a complaint in the Northern District of Illinois requesting judicial review of the agency action. See 42 U.S.C. sec. 405(g). The parties traded motions for summary judgment under FED. R. CIV. P. 56, and the district court referred these motions to a magistrate judge for the preparation of proposed findings of fact and a recommendation pursuant to 28 U.S.C. sec. 636(b)(1)(B). The magistrate judge issued his report on August 3, 1993, and Jackson filed her objections thereto. The focus of Jackson's objections was the testimony offered by Meyer Klein, a vocational expert who testified for the government at the administrative hearing. Klein testified that Jackson was suited for work as a security guard and that EMPLOYMENT STATISTICS QUARTERLY, an industry publication, listed approximately 2,600 of these "unskilled, light positions" available in the Chicago area.

Jackson claimed that this testimony was contradicted by information contained in DICTIONARY OF OCCUPATIONAL TITLES (4th ed. 1991), published by the Department of Labor, which rated the position of security guard as "semi-skilled" rather than "unskilled." In addition, Jackson claimed that EMPLOYMENT STATISTICS QUARTERLY showed that all of the 2,528 sedentary jobs in the security sector were performed by those with prior experience and that EMPLOYMENT STATISTICS QUARTERLY did not classify any entry-level position in this sector as sedentary.

The district court awarded summary judgment to the defendant on June 7, 1994. In reaching this decision, the district court noted the discrepancy between Klein's testimony and the information contained in the two publications described above. (Neither of these publications was part of the record before the ALJ.) The district court recognized that, based on this discrepancy, had Klein's testimony been necessary to the ALJ's decision, that decision could not be based upon substantial evidence. See Limberopoulos v. Shalala, 17 F.3d 975, 980 (7th Cir. 1994). However, the district court reasoned that there was "ample evidence" in the record to support the ALJ's decision absent Klein's testimony.

This evidence took the form of a letter from vocational expert Jim Anderson dated November 19, 1990, in which Anderson wrote that there were more than 250,000 assembler positions in Illinois involving light work, which the parties agree Jackson is capable of performing. The district court stated that the ALJ had used the security guard position only as an example of the type of work suitable for Jackson and had recognized the existence of a significant number of similar positions involving light work. The district court concluded that because the record contained evidence of at least four other vocations suitable for someone with Jackson's physical limitations constituting 250,000 jobs in Illinois, the ALJ's decision was supported by substantial evidence.

Jackson filed a motion to alter the judgment under FED. R. CIV. P. 59(e). She argued that the district court had essentially reweighed the evidence when it affirmed the ALJ's decision by relying on different grounds -- grounds that the ALJ had failed to discuss and, by virtue of accepting Klein's testimony (which conflicted with Anderson's letter), had implicitly rejected. She pointed to the district court's own statement that Klein's testimony was, by itself, insufficient to meet the substantial evidence standard and concluded that the district court was therefore mistaken in holding that substantial evidence supported the ALJ's decision. The district court granted Jackson's Rule 59(e) motion and entered judgment on July 20, 1994, remanding the matter to the ALJ for further proceedings -- namely, the presentation of evidence concerning the existence of suitable jobs in the marketplace.

Jackson filed her motion for attorney fees under 28 U.S.C. sec. 2412(d)(1)(A) on October 4, 1994, seeking a total award of $10,918.62. The district court denied Jackson's motion on May 17, 1995, finding that the government's litigation position was substantially justified because it had a reasonable basis in both law and fact. Jackson filed another motion to alter the judgment ...


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