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Kimberly Brady v. Michael J. Astrue

March 1, 2011

KIMBERLY BRADY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

Kimberly Brady seeks an award of $7,692.75.00 in attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, arguing that the Commissioner's position in denying her application for Disability Insurance Benefits ("DIB") was not "substantially justified."

Ms. Brady applied for DIB and SSI on April 7, 2005, alleging that she had been disabled since May 1, 2003 as a result of "brain tumor/back spasm/neck/depression/headache/dizzy." (Administrative Record ("R.") 100-02, 185). It was her fourth or fifth application, at least one of which had been filed while she was working. Her most recent application -- the one at issue in the underlying case -- was denied initially and upon reconsideration, and she was given an administrative hearing via videoconferencing while she was incarcerated for having stolen money from her last employer. Following the hearing, the ALJ issued an unfavorable decision, denying plaintiff's application because she could perform certain light jobs that existed in significant numbers in the economy. The Appeals Council affirmed the decision, and plaintiff filed for review in this court.

I found that in rejecting the opinions of two treating psychiatrists, the ALJ placed too much stock in some positive comments in treatment notes and in concluding that the psychiatrists took the plaintiff's complaints at face value. I also found that the ALJ's credibility determination of the plaintiff focused too heavily on her limited daily activities -- as she described them -- and the fact that she was able briefly to hold a few short-lived jobs. The difficulty, the Opinion concluded, was not with the ALJ's ultimate conclusion. Indeed, the Opinion found that "a case can certainly be made that the ALJ's ultimate conclusion was correct," and that there was a wealth of evidence that did undermine the plaintiff's credibility. Brady v. Astrue, 2010 WL 1006662, *10 (N.D.Ill. 2010); Dkt. #31, at 19. The problem was the ALJ 's failure to have built the so-called "logical bridge," which the Seventh Circuit insists on: "[W]e cannot uphold a decision by an administrative agency, any more than we can uphold a decision by a district court, if, while there is enough evidence in the record to support the decision, the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result." Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996).

The plaintiff now seeks an award of attorneys' fees and costs under the EAJA. The EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government. Potdar v. Holder, 585 F.3d 317, 319 (7th Cir. 2009). Rather, fees may only be awarded where (1) the plaintiff is a "prevailing party;" (2) the government's position was not substantially justified; (3) no "special circumstances make an award unjust;" and (4) the fee application is submitted to the court within 30 days of final judgment and is supported by an itemized statement. 28 U.S.C. § 2412(d)(1)(A),(B); Golembiewski v. Barnhart, 382 F.3d 721, 723-24 (7th Cir. 2004). Costs are available under 28 U.S.C. § 2412(a)(1). By virtue of the remand, the plaintiff is the prevailing party. Shalala v. Schaefer, 509 U.S. 292, 302 (1993). There are no "special circumstances" alleged, Golembiewski, 382 F.3d at 724; United States v. Hallmark Const. Co., 200 F.3d 1076, 1079 (7th Cir.2000); the plaintiff's application was timely filed, is supported by an itemized statement, and the Commissioner does not quarrel with the amount sought. The only issue is whether the Commissioner's position was substantially justified, a point on which the Commissioner bears the burden of proof. Scarborough v. Principi, 541 U.S. 401, 416 (2004); Golembiewski, 382 F.3d at 724.*fn1

"Substantially justified" is a phrase of inherent and necessary imprecision, involving as it does considerations of reasonableness. It does not mean justified to a high degree, but rather is satisfied if there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action. Golembiewski, 382 F.3d at 724; Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992). A court must consider the agency's position as a whole, not just the parts that failed to persuade. Gatimi v. Holder, 606 F.3d 344, 349 (7th Cir. 2010). The Supreme Court has said that the phrase means "justified in substance or in the main -- that is, justified to a degree that could easily satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). As the Court in Pierce explained: "a position can be justified even though it is not correct," 487 U.S. at 566 n.2, and the Government "could take a position that is substantially justified, yet lose." Id. at 569. In fact, the same judge who remands a disability proceeding can later deny a motion for attorney's fees under EAJA, and that determination "is entitled to substantial weight." United States v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 387 (7th Cir. 2010).

Finally, it is an oft-repeated admonition of higher courts that consideration of a fee petition "'should not result in a second major litigation.'" Pierce, 487 U.S. at 563. The proceeding to recover fees under the Equal Access to Justice Act "is intended to be summary; it. . .is meant to open the doors of the courthouse to parties, not to keep parties locked in the courthouse disputing fees well after the resolution of the underlying case. The EAJA's requirements must be interpreted accordingly." Sosebee v. Astrue, 494 F.3d 583, 588 (7th Cir. 2007).

A significant factor in determining substantial justification is the language of the district court's opinion. Hallmark Const. Co., 200 F.3d at 1079. Just as strong language against the Commissioner's position is evidence that the position was not substantially justified, Golembiewski, 382 F.3d at 724, an opinion suggesting the case was close supports the denial of fees. Cummings v. Sullivan, 950 F.2d 492, 498 (7th Cir.1991) ("the closeness of the question is, in itself, evidence of substantial justification."). Here, the language suggests this case is in the "substantially justified" category. At the outset of the Analysis portion of the Opinion, it was emphasized that this case was an instance of an ALJ failing to articulate the right evidence to support his conclusions:

There is much about Ms. Brady's story that is questionable, and details of her story call into question her credibility, not the least of which is her conviction apparently for robbery or theft. See Rule 609, Federal Rules of Evidence. The problem is that certain aspects of this evidence were not relied on by the ALJ in concluding that Ms. Brady was not a credible witness and if she was not credible her renditions to her doctors may be highly suspect. While a case can certainly be made that the ALJ's ultimate conclusion was correct, that is not the job of a reviewing court.

Brady, 2010 WL 1006662 at *10; Dkt. #31, at 19.

Throughout the Opinion, there are references to evidence that provides additional shadings to the self-portrait Ms. Brady sought to create. She had frequently filed for disability benefits, sometimes while she was working. In connection with some applications, she refused to undergo physical exams to confirm her claimed impairments. Brady, 2010 WL 1006662 at *1; Dkt. #31, at

1. On one application, she alleged a brain tumor, which she later attempted to say was just a pituitary gland tumor that had disappeared. There was no medical evidence establishing any of this. 2010 WL 1006662 at *1, 3-4; Dkt. #31, at 1, 6. In May 2005, she explained at a consultative examination that she had the tumor "many years ago when she was very young," Brady, 2010 WL 1006662 at *3; Dkt. # 31, at 6, but in fact, she had alleged the "brain tumor" as a basis for a disability claim she filed in May 2003. Id. That was not "many years ago," and it was not "when she was very young."

Ms. Brady's vacillations, inconsistencies, and falsehoods are factors that properly may be considered by an ALJ (or any trier of fact) in evaluating a witness's credibility. See Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985)("Documents or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable fact finder would not credit it."); Mitondo v. Mukasey, 523 F.3d 784, 788 (7th Cir. 2008);

C.J. Xodus v. Wackenhut Corp. 619 F.3d 683, 687 (7th Cir. 2010); Kadia v. Gonzales, 501 F.3d 817, 820 (7th Cir. 2007); Ryder Truck Rental v. NLRB, 401 F.3d 815, 827 (7th Cir. 2005); NLRB v. Dorothy Shamrock Coal Co., 833 F.2d 1263, 1268 (7th Cir.1987); Blue v. United States Dept. of Army, 914 F.2d 525, 543-45 (4th Cir. 1990); United States v. Nixon, 881 F.2d 1305, 1309 (5th Cir. 1989). And, of course, the submission of fraudulent documents on matters central to one's claims can be grounds for an adverse credibility finding. Hysi v. Gonzales, 411 F.3d 847, 852-53 (7th Cir.2005), cert. denied, 546 ...


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