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Brenda Fleming v. Michael J. Astrue

September 27, 2011


The opinion of the court was delivered by: Magistrate Judge Cox


Plaintiff, Brenda Fleming, seeks recovery of her attorney's fees pursuant to the Equal Access to Justice Act ("EAJA").*fn2 The Commissioner of the Social Security Administration ("Commissioner") opposes plaintiff's motion. For the reasons set forth below, the Court grants the motion and awards attorney's fees totaling $4,916.43.

The Court discussed the facts of this case in detail in our May 10, 2011 Opinion and Order,*fn3 so we will only briefly restate them here. On September 8, 2006, plaintiff filed an application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act.*fn4 She claimed disability on the basis of seizure disorder, anemia, obesity, and high blood pressure. Ultimately, Administrative Law Judge ("ALJ") Bonny S. Barezky denied plaintiff's claim for DIB in a written decision dated June 16, 2009. Plaintiff appealed that decision to this Court and, on May 10, 2011, the Court granted summary judgment in favor of the plaintiff and remanded the case to the Commissioner. After the remand, on July 20, 2011, plaintiff timely filed a motion for an award of attorney's fees [dkt 28].

In her motion for summary judgment, plaintiff presented four arguments. We agreed with two of those arguments. First, we found that the ALJ failed to explain how Fleming's obesity factored into her overall decision.*fn5 While the ALJ observed that Fleming's obesity was a "severe impairment," she noted that "there is no objective medical evidence demonstrating that [Fleming's] obesity in combination with [her] cardiovascular impairment meets any listing under 4.01."*fn6 Social Security Ruling ("SSR") 02-1p defines obesity as a "medically determinable impairment," and requires adjudicators to consider its effects when evaluating a claimant's disability.*fn7 Because the ALJ listed Fleming's obesity as one of her severe impairments, she had a duty to consider "the aggregate effect" of Fleming's obesity and the entire constellation of ailments, including those that in isolation may not be severe.*fn8 In examining the ALJ's opinion, we noted a discrepancy between Fleming's height and body mass index ("BMI") as calculated by Fleming and the ALJ. We concluded that determining Fleming's exact BMI would be necessary for an assessment of Fleming's obesity and, consequently, a correct disability determination.

Second, we found that the ALJ failed to analyze the specific duties of Fleming's past relevant work.*fn9 When the transferability of work skills is material to the outcome of a decision, the ALJ is required to "make certain findings of fact and include them in the written decision."*fn10 Here, the ALJ failed to "list the specific physical requirements of the previous job and assess, in light of the available evidence, the claimant's ability to perform these tasks," as required by the Seventh Circuit.*fn11 In reversing, we noted that the use of a vocational expert ("VE") on remand is discretionary and that, pending the determination of Fleming's obesity, the ALJ may consult a VE to determine if Fleming's obesity would have a significant impact on her capacity to work.

In sum, we remanded this case due to the ALJ's failure to address Fleming's obesity as an aggravating factor with her other impairments, as well as the ALJ's failure to properly investigate the specific requirements of Fleming's past relevant work.

The EAJA provides that a plaintiff may be awarded attorney's fees where: (1) "the plaintiff is the 'prevailing party;'" (2) the government's position was not "substantially justified;" (3) there were no "special circumstances" to 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.*fn12 Fleming was the prevailing party, no "special circumstances" are alleged, and the fee application was timely. Thus, the only disputed issue is whether the Commissioner's position was substantially justified.
For a position to be "substantially justified" it must be "justified to a degree that could satisfy a reasonable person."*fn13 Although the Court will look to both the government's pre-litigation conduct (such as the ALJ's decision) and litigation position, it will "make only one determination for the entire civil action."*fn14 The government's position does not necessarily have to be correct, but must have: "(1) a reasonable basis in truth for the fact's alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the theory propounded."*fn15 Thus, to meet its burden of proof, the Government must establish that its position had "a reasonable basis in law and fact."*fn16 When the Government's legal position offends the Commissioner's own rules or clearly established leal precedent, its position cannot be said to be "substantially justified."*fn17

The Commissioner argues that the government had a reasonable basis for its position, and thus Fleming's application for attorney fees should be denied.*fn18 In particular, the Commissioner contends that the ALJ should not be faulted for any discrepancies in identifying Fleming's BMI, because the ALJ was entitled to rely on Fleming's self-reported height, and the ALJ applied the correct BMI calculation standard.*fn19 The Commissioner also argues that, while the ALJ "might not have extensively discussed [p]laintiff's obesity on her residual functional capacity [("RFC") determination]," the ALJ accorded great weight to a state agency reviewing physician who had documented Fleming's obesity and nonetheless concluded that Fleming could perform light work.*fn20

Notably absent from the Commissioner's opposition brief is any mention of SSR 02-1p, or the rule's mandate that the ALJ consider Fleming's obesity in the context of Fleming's other limitations.

A loss on the merits does not necessarily equate a lack of substantial justification,*fn21 nor does being incorrect on a single point.*fn22 However, the law remains clear that, where a government's litigation position offends the Commissioner's own rules or established legal precedent, the Commissioner's litigation position lacks substantial justification.*fn23 Here, the ALJ's failure to properly assess and consider Fleming's obesity violated SSR 02-1p, the Commissioner's own rule, and ran contrary to established legal precedent.*fn24 The Commissioner's post-hoc rationalization of the ALJ's obesity findings (or lack thereof) cannot change this fact, as the Court must confine its review to the reasons articulated by the ALJ.*fn25 Because the ALJ did not explain how she factored Fleming's obesity into her total analysis, the Commissioner's reasoning is not supported.

Further, the ALJ's failure to assess whether Fleming possessed the RFC to perform the demands of her past relevant work also ran contrary to the Commissioner's rules and long-standing Seventh Circuit precedent requiring such analysis.*fn26 The Commissioner now argues that the ALJ's failure to analyze Fleming's past work was harmless because Fleming's inability to perform past work would not have rendered her disabled.*fn27 While acknowledging that "the ALJ's analysis of [Fleming's] past work was not supported by substantial evidence," the Commissioner argues that "it was not so deficient as to warrant an award of EAJA fees."*fn28 The Court does not consider the Commissioner's pre-litigation errors in isolation, but instead evaluates the Commissioner's litigation position as a whole.*fn29 Where, as here, the Commissioner advocates a pre-litigation position which offends its own rules and established legal precedent -- in not one, but two instances -- the Court has good cause for concluding that the Commissioner's litigation position was not substantially justified. Consequently, an award of EAJA fees is appropriate in this case.

Initially, Fleming sought attorney's fees in the amount of $4,513.93. In her reply brief, Fleming added $402.50 for litigating this motion, for a total of $4,916.43. The Commissioner did not object to the reasonableness of the initial fees sought, and we find that Fleming's ...

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