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Charles Smith v. Michael J. Astrue

July 14, 2011

CHARLES SMITH , PLAINTIFF,
v.
MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Martin C. Ashman United States Magistrate Judge

Magistrate Judge Martin C. Ashman

MEMORANDUM OPINION AND ORDER

Plaintiff, Charles Smith ("Plaintiff") brings this motion for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Defendant, Michael Astrue, the Commissioner of the Social Security Administration ("Commissioner") opposes the motion. The parties have consented to have this Court conduct any and all proceedings in this case, including entry of final judgment pursuant to 28 U.S.C. § 636(c) and N.D. Ill. R. 73.1(c). For the reasons stated below, this Court grants Plaintiff's motion.

I. Background

Plaintiff filed an application for disability insurance benefits and social security income on March 22, 2005. After the Social Security Administration ("SSA") denied his application initially and on reconsideration, he received a hearing before an administrative law judge ("ALJ") on April 9, 2008. On May 22, 2008, the ALJ issued a decision finding that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for a review, and he filed the instant case in this Court on October 8, 2009. The Court reversed the Commissioner's decision in part and remanded for further consideration. Plaintiff now seeks attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d).

II. Legal Standard

The EAJA provides that a district court may award "fees and other expenses" where (1) the claimant was a prevailing party, (2) the government's position was not substantially justified, (3) there are no special circumstances that make an award unjust, and (4) the claimant filed a timely and complete application with the district court. 28 U.S.C. § 2412(d)(1)(A); Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). The requesting party must show that the fees sought are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). A position is "substantially justified if it has a reasonable basis in fact and law, and if there is a reasonable connection between the facts alleged and legal theory" propounded. Stewart, 561 F.3d at 683 (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The Commissioner bears the burden of proving that both his pre-litigation conduct, including the ALJ's decision, and his litigation position were substantially justified. Stewart, 561 F.3dat 683. Proving this requires that the government show "its position was grounded in '(1) a reasonable basis in 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 propounded.'" Bricks, Inc. v. U.S. Env't Prot. Agency, 426 F.3d 918, 922 (7th Cir. 2005) (quoting United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000)); Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir. 2006).

Under Astrue v. Ratliff, - U.S. - , 130 S.Ct. 2521 (2010), an award under the EAJA belongs to the plaintiff and can be offset to satisfy a pre-existing debt the plaintiff owes the United States ("the Government"). After the award is entered, if the Government determines that plaintiff owes no such debts, the Government will direct that the fee award and expenses be made payable to plaintiff's attorney pursuant to the EAJA assignment signed by the parties. The award for costs is also payable to plaintiff.

III. Discussion

The Court remanded the Commissioner's decision on the ground that the vocational expert ("VE") did not provide data or documents to support his estimate of the number of jobs in the local economy that were available to Plaintiff. At the administrative hearing, the VE deviated from the Dictionary of Occupational Titles ("DOT") concerning the number of available jobs for Plaintiff. The VE estimated that there are 1,700 information clerks and 2,000 surveillance system monitors in the Chicago metropolitan area that are both unskilled and sedentary. In coming up with this figure, the VE explained that he took the Bureau of Labor Statistics data for all security personnel and for all information clerks and reduced each figure to five percent of the total number in order to account for only those positions that were unskilled and sedentary. According to the VE, these modifications were based on his personal knowledge and experience. Next, the ALJ asked the VE to consider the same residual functioning capacity as before and an additional limitation requiring Plaintiff to work independently so as not to distract co-workers. The ALJ clarified that under this added restriction, Plaintiff could still have limited interaction with the public. The VE testified that Plaintiff could perform work as either an information clerk or surveillance system monitor, but the VE reduced his previously estimated figures by another ten percent and twenty percent, respectively. The Court found that the VE had not provided sufficient reasons for reaching his conclusions and remanded the case for further inquiry on this ground.

The Commissioner argues that fees are not warranted here because the Court stated that the VE's testimony was only improper under "the facts presented in this case," not a violation of long-standing precedent. See Smith v. Astrue, No. 09 C 2392, 2010 WL 5110143, at *3 (N.D. Ill. Dec. 6, 2010). The significance of this argument is unclear, as the Court's decision in all such cases necessarily depends on the specific facts presented. The Court's decision in this case, as well as its order on the Commissioner's Rule 59(e) motion, found that the Commissioner had misapplied the requirements of McKinnie v. Barnhart, 368 F.3d 907 (7th Cir. 2004) to these facts. The Court's decision did not suggest that the facts of this case were so nuanced or unusual that its was unclear how McKinnie applied to them. Instead, the Court stated that when, as here, the basis for a VE's testimony is challenged, binding precedent clearly requires an ALJ to inquire into its reliability, that a VE must supply reasons for his determination, and that he did not do so here even when the Plaintiff asked for supporting data.

The Commissioner also contends that the Court failed to use the kind of "strong language" that can support an award of attorney's fees. See Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) ("Strong language against the government's position in an opinion discussing the merits of a key issue is evidence in support of an award of EAJA fees."). Such language, however, is not a necessary predicate for such fees, and the fact that the Court did not express its concerns with sufficient harshness to satisfy the Commissioner at this stage is not a ground for finding that his litigation position was substantially justified. Instead, the Court's decision was clear that the VE did not comply with McKinnie's requirements and that the Commissioner's defense of the ALJ's opinion was not substantially justified by precedent. See Smith v. Astrue, No. 09 C 2392, 2010 WL 3526655, at *17 (N.D. Ill. Sept. 1, 2010) ("If a vocational expert could justify his testimony merely by referring to personal experience, it is difficult to understand how such testimony could ever be meaningfully challenged or what McKinnie's requirement of the data and reasoning underlying the expert's testimony would mean.").

The Commissioner further contends that the Court's decision did not find sufficient error to warrant EAJA fees because it did not determine that the VE was not entitled to rely on his personal experience and that it did not accept Plaintiff's argument that the VE was required to produce reports to support his testimony. This argument mischaracterizes the import of the Court's decision. While the Court agreed with the Commissioner that a VE can rely on his own experience to meet McKinnie's requirements, it also took strong exception to the VE's failure to comply with McKinnie's mandate that the data or reasoning supporting his testimony be "available on demand." McKinnie, 368 F.3d at 911. As the Court noted, the VE in this case failed to produce, or even refer to, supporting reports or documents at the hearing despite strong and direct demands for them by Plaintiff's counsel.

The fact that the Court agreed with the Commissioner that a VE is entitled to rely on his general experience does not justify the Commissioner's litigation position under these facts. The Court rejected the Commissioner's argument that the VE provided "detailed" evidence of his personal experience, Smith, 2010 WL 5110143, at *2-3, finding instead that his testimony on this topic was unsatisfactorily brief and failed to address the VE's experience in placing information clerks. Id. The Commissioner relies once more on a characterization of the VE's testimony as sufficient to justify the ALJ's acceptance of it. For the reasons stated in the Court's decision and its order on the Rule 59(e) motion, the Court again rejects this argument. The VE's testimony was far from detailed, failed to address his experience in all the ...


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