United States District Court, N.D. Illinois
April 20, 2004.
ANDRE HENDERSON Plaintiff,
JO ANNE BARNHART Commissioner of Social Security (Remand from Court of Appeals, No. 03-1828) Defendant
The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Andre Henderson ("Henderson"), was denied disability
insurance benefits ("OIB") and Supplemental Security Income benefits
("SSI") by an administrative law judge ("ALJ"). The Commissioner of
Social Security Appeals Board upheld the ALJ's denial of benefits. This
Court affirmed the Commissioner's decision. Henderson v.
Barnhart, 2003 U.S. Dist. LEXIS 1532 (N.D. III. 2003). Henderson
appealed and the Seventh Circuit Court of Appeals reversed the decision
of this Court and remanded the claim for further proceedings by the
Commissioner, Henderson v. Barnhart, 349 F.3d 434 (7th Cir.
2003). Henderson now petitions for attorney's fees and costs pursuant to
the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). For
the reasons explained below, we grant plaintiff's petition.
The facts underlying Henderson's complaint are set out in detail in our
previous opinion, Henderson, 2003 U.S. Dist. LEXIS 1532.
Therefore, we will only provide a brief recitation here. Henderson applied for disability benefits on
June 22, 1999, alleging that he suffered from asthma, hypertension,
obesity and mental impairment. After his claim was denied by the
Commissioner, Henderson requested a hearing before an ALJ. On September
5, 2000, the ALJ held an administrative disability hearing and issued a
written opinion denying Henderson disability benefits. Specifically, the
ALJ found that Henderson's asthma, hypertension and borderline
intellectual functioning did not prevent him from performing his past
relevant work as a school bus driver or as a medical courier. R. 21.
Henderson filed suit seeking judicial review of the ALJ's decision. On
January 31, 2003, this Court found that the ALJ's decision was reasonable
and that he had explained his rationale sufficiently to build a logical
bridge for later review. Henderson, 2003 U.S. Dist. LEXIS 1532.
The Court of Appeals disagreed, finding that the ALJ failed to
sufficiently probe Henderson's capacity to be a school bus driver and
failed to articulate a reasoned basis for his ruling that Henderson could
drive a car. Henderson, 349 F.3d at 436. Therefore, the Seventh
Circuit concluded that the ALJ's ruling could not stand. Id.
Standard of Review
Under the EAJA, a prevailing party, other than the government, is
entitled to attorney's fees if the position of the Commissioner was not
"substantially justified" or if special circumstances make an award
unjust. 28 U.S.C. § 2412(d)(1)(A). The Commissioner does not dispute
that Henderson is a prevailing party and acknowledges that his claim was
reversed and remanded by the Court of Appeals pursuant to sentence four of 42 U.S.C. § 405(g). See Shalala v.
Schaefer, 509 U.S. 292, 296-297 (1933). Nor does the Commissioner
claim any special circumstances that would make an award unjust. In this
case, the only issue is whether the Commissioner's position was
The government has the burden of proving that its position was
substantially justified. Marcus v. Shalala, 17 F.3d 1033, 1036
(7th Cir. 1994). The Commissioner's position is substantially justified
"if a reasonable person could think it correct, that is, if it has a
reasonable basis in law and fact." Id. (quoting Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988)); see also Corder v.
Massanari, No. 00 C 2714 2001 WL 1355986 (N.D.III, Nov. 1, 2001)
(citations omitted). Demonstrating substantial justification requires
that the government show "that its position was grounded in: 1) a
reasonable basis in the truth for the facts alleged; 2) a reasonable
basis in law for the theory propounded; and 3) a reasonable connection
between the facts alleged and the legal theory advanced." United
States v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir.
2000)(citing Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638,
642 (7th Cir. 1987) (internal citations omitted)).
The burden of demonstrating substantial justification rests with the
Commissioner, and there is no presumption that a prevailing party is
entitled to fees. Marcus, 17 F.3d at 1036. Moreover, the fact
that this Court previously ruled in favor of the Commissioner does not
establish that the government's position was substantially justified. See
Pierce, 487 U.S. at 565. Where a district court's ruling has
been reversed, "the touchstone for the Court's analysis is the Seventh
Circuit's evaluation of the ALJ's ruling and not this Court's previous review of the
merits." Zurawski v. Massanari, No. 99 C 2819, 2001 U.S. Dist.
LEXIS 12725 at *7 (N.D.III. Aug. 21, 2001).
In the instant case, the Seventh Circuit concluded that "[t]he sole
ground on which the administrative law judge denied benefits was that he
thought Henderson capable of doing his previous work as a school bus
driver and later a medical courier driver." Henderson, 349 F.3d
at 435. Both the ALJ and the Commissioner gave great weight to the fact
that Henderson, while experiencing some of his claimed impairments,
performed the duties of a bus driver for six and a half years and stopped
only because his Commercial Drivers License (CDL) expired. The Seventh
Circuit noted, however, that "the fact that a person holds down a job
doesn't prove that he isn't disabled . . ." Id. Given
Henderson's "low IQ, medley of serious health problems, and reading
difficulties" the Seventh Circuit considered Henderson unfit for the job
of a bus driver and stated that "the ALJ's finding that Henderson is able
to return to his previous work as a school bus driver is untenable."
The government contends that even though the Commissioner's
interpretation of the record was different from the evaluation made by
the Court of Appeals, it was still reasonable to conclude that
Henderson's impairments were not disabling and did not prevent him from
driving a school bus. In support of its claim, the government points to
evidence in the record that Henderson did not seek treatment for any
impairment except for hypertension, that no physician found him to have
any limitations on account of either heart disease or obesity, and the
fact that Henderson admitted that only one or two aspirin would make his headaches go away. With respect to
Henderson's borderline mental functioning, the government argues that
Henderson did not seek treatment for his mental functioning problem, nor
was he advised to seek such treatment. However, the ALJ did not include
any of these factors noted by the government as part of the basis for his
decision that Henderson is not disabled. As the reviewing court, we must
look at the grounds actually provided by the ALJ in reaching his
decision, not grounds on which he could have based his decision.
O'Conner v. Sullivan, 938 F.2d 70, 73 (7th Cir. 1991); Banks
v. Barnhart, 2003 U.S. Dist. LEXIS 14823 *8 (N.D. III. 2003)
(holding that the court's review of an administrative decision is limited
to grounds provided by the agency). The Seventh Circuit noted that "the
evidence presented by Henderson was not conclusive, but it was sufficient
to require the administrative law judge to probe Henderson's capacity to
be a school bus driver more deeply." Henderson, 349 F.3d at 436.
Next, the Seventh Circuit found that making deliveries by car was a
less responsible job than driving a school bus, but "the administrative
law judge accepted the evidence of one of the medical experts*fn1 that
Henderson is incapable of performing (safely) a job that requires the use
of hazardous machinery, which seems a fair description of an automobile
driven in Chicago, or the making of critical judgments, which driving
The Commissioner asserts that the ALJ did not accept Dr. Kuester's
opinion in its entirety. The ALJ did not mention Dr. Kuester by name, but did
state that he had "carefully considered all of the medical opinions in
the record regarding the severity of the claimant's impairments." R.21.
The Commissioner's contention that "the ALJ did not accept Dr. Kuester's
opinion in its entirety" is without basis. The ALJ explicitly rejected
only two medical findings in his decision. First, the ALJ found that one
medical consultant's expectation that Henderson can do more than light
exertion was "unjustified" because the consultant's expectation was
inconsistent with the rest of the medical evidence. R. 20. The ALJ also
rejected a conclusion made by Dr. Rizzo regarding Henderson's ability to
accept and respond appropriately to criticism. The ALJ's rejection of Dr.
Rizzo's conclusion was limited to this single point.
The ALJ agreed with the medical assessment of Henderson's mental
impairment severity and mental residual functional assessment. R.20. The
ALJ stated that the vocational expert testified that Henderson retained
the physical and mental functional capacity to return to either of his
prior relevant jobs. However, given the whole of Dr. Rizzo's medical
opinion, the vocational expert also testified that the cumulative effect
of Henderson's impairments precludes the ability to work in general. R.
The Seventh Circuit found that "[h]aving accepted this evidence, the
judge failed to connect it with the issue of whether Henderson could
perform a job that consists entirely of driving." Henderson, 349
F.3d at 436. Because, as the Seventh Circuit found, the ALJ failed to
"build a bridge between the record and the conclusion that Henderson can
do the work of a driver," id., the Commissioner's position was
not substantially justified. See Zurawski, 2001 U.S. Dist. LEXIS
12725 at *10 (commissioner's position not substantially justified where ALJ
fails to build bridge between the evidence and the conclusion).
Following the Seventh Circuit's analysis, this Court finds that the
government has failed to meet its burden to show that its position was
substantially justified within the meaning of the EAJA. Accordingly, an
award of fees under the EAJA is appropriate.
The Commissioner does not dispute the hourly rates, costs, or
reasonableness of the attorney's fees sought. Henderson's district court
and appellate counsel performed work on the case for 1.75 hours in 2001
at a rate of $142.90 per hour; 20.75 hours in 2002 at a rate of $144.58
per hour; and 99.1 hours in 2003 at a rate of $145.86 per hour. To this,
1.6 hours at a rate of $75 per hour are added for paralegal time, along
with costs in the amount of $416.70. This totals $18,241.54.*fn2 In a
Supplemental Fee Petition, Henderson also requests an additional 8 hours
for preparation of his EAJA reply brief at $145.86 per hour, for
a total of $1,166.88. Henderson is entitled to these fees as
well. See Banks v. Barnhart, 2003 U.S. Dist. LEXIS 14823 at * 3
(plaintiff is entitled to fees for time spent preparing an EAJA petition)
(citing Commissioner, INS v. Jean, 496 U.S. 154, 162 (1990)). In
total, Henderson requests $19,408.42.*fn3 Conclusion
We find Henderson's requested fees reasonable and award attorney's fees
and costs under EAJA in the amount of $19,408,42, payable to Barry A.
Schultz. It is so ordered.