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Lisa anderson v. Michael J. Astrue

November 2, 2011


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


Plaintiff Lisa Anderson filed an action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits under Title II of the Social Security Act. On June 13, 2011, the Court remanded the case to the Administrative Law Judge for further evaluation. Plaintiff now seeks to recover her attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), arguing that the Commissioner's position in defending the ALJ's decision was not "substantially justified." For the reasons set forth below, the Court concludes that the Commissioner's position was substantially justified on one issue concerning the ALJ's borderline age determination, but was not substantially justified on the remaining two issues or overall, and therefore the application for fees is granted.


Plaintiff applied for disability insurance benefits on August 9, 2006, alleging that she became disabled on August 25, 1996 from a variety of impairments, including a brain tumor, fibromyalgia, depression, detached retinas, cataracts, headaches and a dislocated knee cap. The Social Security Administration denied her application initially and on reconsideration. Following an administrative hearing, the ALJ found that Plaintiff is not disabled because she is capable of performing a significant number of jobs available in the national economy. The Appeals Council denied Plaintiff's request for review, and she sought relief in this Court pursuant to 42 U.S.C. § 405(g). In support of her motion to reverse the Commissioner's decision, Plaintiff argued that the ALJ (1) erred by applying the age categories of the regulations in a mechanical manner to classify her as a "younger individual" rather than considering whether her borderline age made it more appropriate to categorize her in the next higher age category, resulting in a finding of disabled; (2) erred by omitting discussion of certain significant medical evidence in determining Plaintiff's residual functional capacity ("RFC"); and (3) erred in discounting Plaintiff's testimony about the severity of her headaches.

The Court agreed with Plaintiff's first argument, concluding that the ALJ failed to show that he considered Plaintiff's borderline age or otherwise explain why he used her chronological age instead of placing her in the next higher age category, which would have resulted in a finding that she is disabled. As a result, the age category determination was not supported by substantial evidence. See Freundt v. Massanari, No. 00 C 4456, 2001 WL 1356146, *19 (N.D. Ill. Nov. 2, 2001) (citing Daniels v. Apfel, 154 F.3d 1129, 1136 (10th Cir. 1998); Graham v. Massanari, No. 00 C 4669, 2001 WL 527326, *8 (N.D. Ill. May 9, 2001). In reaching this conclusion, the Court noted that there is a Circuit split concerning the obligations of an ALJ in a borderline age situation. The Third and Tenth Circuits have held that an ALJ must show in his decision that he has performed the analysis required by the regulations in a borderline age situation. See Kane v. Heckler, 776 F.2d 1130, 1132-34 (3d Cir. 1985); Daniels, 154 F.3d at 1136 (an ALJ must make an explicit age category determination supported by substantial evidence). But the Sixth, Ninth, and Eleventh Circuits have rejected the argument that the borderline-age regulations are applied mechanically in violation of the regulations when the ALJ fails to explicitly indicate that he considered the claimant's borderline age status. See Bowie v. Comm'r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008); Lockwood v.Comm'r of Soc. Sec. Admin., 616 F.3d 1068 (9th Cir. 2010); Miller v.Comm'r of Soc. Sec., 241 F. App'x 631, 635 (11th Cir. 2006). The Court further noted that the Seventh Circuit has not explicitly ruled on this issue, but that several decisions in this district have adopted the Tenth Circuit approach. Thus, the Court declined to adopt the position advocated by the Commissioner, for which he relied on Sixth Circuit case law and the Social Security Administration's HALLEX guidance document. (Doc. 22, at 10-12).

The Court also agreed with Plaintiff that the RFC determination was flawed because the ALJ failed to discuss medical records that support Plaintiff's claim of disability or to explain how they support his conclusion that Plaintiff experienced steady improvement and was able to control her headaches with medication. See SSR 96-8p, 1996 WL 374184, at *5 ("The RFC assessment must be based on all of the relevant evidence in the case record . . . .") (emphasis in original); see also Alexander v. Astrue, No. 09 C 3406, 2010 WL 3199356, at *10 (N.D. Ill. Aug. 10, 2010) ("The ALJ must examine the entire record to construct an RFC and confront evidence that does not support his determination."). By omitting any discussion of Dr. Diamond's treatment notes concerning the frequency of Plaintiff's headaches, potential triggers, and her methods of treating them, the ALJ failed to build an accurate and logical bridge from the evidence to his conclusion that Plaintiff is capable of full-time employment. See Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008).

Finally, the Court agreed with Plaintiff's argument that the ALJ erred in discounting her testimony about the severity of her headaches. Specifically, Plaintiff's mere "determination" to work, without more, was not a proper basis for undercutting her credibility. See Bartell v. Cohen, 445 F.2d 80, 82 (7th Cir. 1971) ("[P]laintiff's attempts to secure employment are relevant only to her motivation and not to whether she was, in fact, disabled."); see also Heldenbrand v. Chater, 132 F.3d 36 (Table), at *14 (7th Cir. 1997). Nor was it proper for the ALJ to discount Plaintiff's credibility based on his conclusion that her headaches were controlled by medication and had steadily improved where, as noted above, these conclusions were contrary to a number of treatment records that the ALJ failed to discuss. See Allord v. Barnhart, 455 F.3d 818, 821 (7th Cir. 2006) (ALJ's credibility finding is not binding if it is "based on errors of fact or logic."). For all these reasons, the Court remanded the case for further proceedings.

On September 8, 2011, Plaintiff filed a timely application asserting that she is the prevailing party in this action and requesting fees in the amount of $7,682.03. (Docs. 31, 32). See 28 U.S.C. § 2412(d)(1)(B); see also Shalala v. Schaefer, 509 U.S. 292, 302 (1993). The Commissioner does not object to the reasonableness of the specific amount requested, but argues that Plaintiff is not entitled to any fees at all. In her reply memorandum, Plaintiff amended her fee request to include time spent preparing that document and now seeks a total of $8,185.90 in fees.*fn1 (Doc. 35, at 6).


A. Standard of Review

Under the EAJA, a court may award attorneys' fees to a prevailing party in a civil suit against the government if the government's position was not "substantially justified." 28 U.S.C. § 2412(d)(1)(A). To be eligible to receive a fee award, a party "must show that: (1) she was a prevailing party; (2) the Government's position was not substantially justified; (3) there existed no special circumstances that would make an award unjust; and (4) she filed a timely and complete application for fees." Potdar v. Holder, 585 F.3d 317, 319 (7th Cir. 2009) (quoting Kholyavskiy v. Holder, 561 F.3d 689, 690 (7th Cir. 2009)). Here, it is undisputed that Plaintiff filed a timely petition supported by an itemized statement and is a "prevailing party," see Schaefer, 509 U.S. at 300, and the Commissioner does not assert that "special circumstances" exist. Thus, the only issue is whether the government's position was substantially justified, meaning "justified to a degree that could satisfy a reasonable person." Potdar, 585 F.3d at 319 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). To be substantially justified, a position must have a reasonable basis in both fact and law, and there must be a reasonable connection between the facts and the legal theory. Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009); Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir. 2006).

The EAJA "'is not an automatic fee-shifting statute,'" so merely prevailing against the government does not entitle a party to fees. Potdar, 585 F.3d at 319 (citation omitted); see also Frost v. Astrue, 369 F. App'x 721, 722 (7th Cir. 2010) (citing United States v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 387 (7th Cir. 2010) (holding in the consolidated case of Park v. Astrue that a remand does not necessarily entitle a claimant to attorneys' fees); Berman v. Schweiker, 713, F.2d 1290, 1295 n.18 (7th Cir. 1983) (holding that "merely because the government loses a case, a presumption does not arise that the government's position was not substantially justified."). Nor does a fee determination rest solely on the number of issues on which the plaintiff prevailed; rather the inquiry involves an assessment of the complete litigation, including pre-litigation conduct and the ALJ's decision, and the Commissioner bears the burden of proving that his position was substantially justified overall. Stewart, 561 F.3d at 683-84; Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006).

B. Analysis

The Commissioner argues that he was substantially justified in defending the ALJ's decision on all three issues Plaintiff raised because "the government had a reasonable basis in law and fact for its position." (Doc. 34, at 4). As discussed below, the Court agrees as to ...

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