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Clark Abbott v. Michael J. Astrue

May 20, 2011

CLARK ABBOTT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: David G. Bernthal U.S. Magistrate Judge

E-FILED

Friday, 20 May, 2011 02:15:02 PM Clerk, U.S. District Court, ILCD

ORDER

In January 2008, Administrative Law Judge ("ALJ") John Wood denied Plaintiff Clark Abbott's application for disability insurance benefits. ALJ Wood based his decision on a finding that Plaintiff was able to perform jobs that exist in significant numbers in the national economy.

In August 2008, Plaintiff filed a Complaint To Review Decision of Social Security (#5) against Defendant Michael Astrue, the Commissioner of Social Security, seeking judicial review of the ALJ's decision to deny social security benefits. In an Order (#25) entered on November 10, 2009, this Court denied Plaintiff relief and upheld the decision of the Commissioner of Social Security. Thereafter, the United States Court of Appeals for the Seventh Circuit found that the ALJ had erred such that a remand to the agency was required.

In February 2011, Plaintiff*fn1 filed her Petition for Award of Attorneys Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412 (#38).

Plaintiff asserts an entitlement to attorney fees under the Equal Access to Justice Act ("EAJA") because: (1) the decision of the Court of Appeals made claimant the prevailing party;

(2) the position of the Government was not substantially justified; (3) no special circumstances exist which would make an award of attorney fees unjust; and (4) a timely and complete application for fees has been filed. She cites 28 U.S.C. § 2412(d)(1)(A)-(B) and Stewart v. Astrue, 561 F.3d, 679, 683 (7th Cir. 2009).

Defendant has filed a response (#40) in opposition. Of the four qualifying factors asserted by Plaintiff, Defendant challenges only the second. Specifically, Defendant claims that the Government's position was substantially justified. Defendant does not challenge the reasonableness of the fees claimed nor any of the other prerequisites for an award of fees.

The Defendant bears the burden of establishing that his position was substantially justified. Stewart v. Astrue, 562 F.3rd 679, 683 (7th Cir. 2009). He makes a spirited argument in support of his effort to meet that burden. For reasons stated below, this Court concludes that the argument falls short.

In its decision, the Court of Appeals stated:

Abbott's argument, however, misses a key point that itself requires a remand: the ALJ did not identify the specific skills Abbott had acquired as a job coach, let alone explain how those skills would transfer to the caseworker position. By omitting his reasoning on these points, the ALJ provided no basis upon which we can conduct our review and, furthermore, violated a directive found in Social Security Ruling 82-41.*fn2

Abbott v. Astrue, 391 Fed.Appx. 554, 558 (7th Cir. 2010). The Court of Appeals noted further errors and concerns but this Court will focus on the flaw related to the transferability of work skills.

As pointed out by the Court of Appeals, the issue of transferability of work skills is critical to the proper determination of the claim. ...


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