The opinion of the court was delivered by: Hon. Harry D. Leinenweber
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Timothy McGrath's ("McGrath") Motion for Attorney's Fees under the Equal Access to Justice Act, 28 U.S.C. § 2412. For the reasons stated herein, Plaintiff's Motion is granted.
In an opinion dated April 12, 2012, the Court ruled on Plaintiff Timothy McGrath's Motion to Reverse or Remand the Commissioner of Social Security's decision that he is not disabled. The majority of the relevant facts of this case are set out in that opinion. The Court remanded the case so that the Administrative Law Judge (the "ALJ") could consider new evidence that became available after the ALJ had issued her decision. As to McGrath's substantive challenges to the ALJ's decision, the Court ruled in favor of the Commissioner on three issues, but ruled in favor of McGrath and remanded on the final issue. That ruling is now the basis for his request for attorney fees under the Equal Access to Justice Act (the "EAJA").
Under the EAJA, a court may award costs and attorneys' fees to the prevailing party in a civil suit against the government, but only if the "position of the United States" was not "substantially justified" and there are no "special circumstances" that make such an award unjust. 28 U.S.C. § 2412(d)(1)(A). There is no dispute here that McGrath was the prevailing party in the underlying suit, nor is there any contention by the Government that there are special circumstances precluding an award of attorneys' fees. The only issue for determination, therefore, is whether the Government's position in the underlying suit was "substantially justified."
To be substantially justified, the Government's position need not be "'justified to a high degree,' but rather 'justified in substance or in the main' -- that is, justified to a degree that could satisfy a reasonable person." Pierce v. Sullivan, 487 U.S. 552, 565 (1988). The position is substantially justified "if it has a reasonable basis in fact and law." Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). In the Social Security context, the "position of the United States" includes the Commissioner's litigation position and pre-litigation conduct, as well as the ALJ's decision itself. Id.; 28 U.S.C. § 2412(d)(2)(D). It is the Commissioner's burden to show that the Government's position was substantially justified. Stewart, 561 F.3d at 683.
As noted above, on April 10, 2012, the Court remanded the ALJ's decision for two reasons. First, the Court remanded the case so that the ALJ could consider new evidence that was not available at the time of the original hearing. This type of remand is considered a "sentence six remand" under 42 U.S.C. § 405(g). Melkonyan v. Sullivan, 501 U.S. 89, 100. Because sentence six remands are not considered "final judgments" for purposes of the EAJA that portion of the Court's ruling is not currently at issue. See id. The second reason for remand does raise a question under the EAJA, and is described below.
A. Whether the Commissioner's Position is Substantially Justified
In the April 10 opinion, the Court rejected three out of four of McGrath's substantive challenges to the ALJ's decision, but found merit in the final challenge and reversed and remanded on that basis. When determining whether McGrath was disabled, the ALJ followed the five-step analysis set out in 20 C.F.R. § 404.1520(a)(4). The Court found no significant problems with the ALJ's analysis in the first four steps, but did find reversible error at step five. The Court held that the ALJ failed to satisfy her burden of showing that McGrath could perform other jobs in the national economy. Because the ALJ relied on the Medical-Vocational Guides without making a determination that McGrath's non-exertional limitations were not substantial, her position -- and therefore, that of the Commissioner -- was not substantially justified.
To find a claimant not disabled, step five requires the ALJ to show that the claimant can perform some other job in the national economy. Id. The ALJ may do so by applying the Medical-Vocational Guidelines, commonly called the grids. Walker v. Bowen, 834 F.2d 635, 641 (7th Cir. 1987). Non-exertional limitations, however, are not factored into the grids. Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994). Where a non-exertional limitation "might substantially reduce the range of work an individual can perform," the ALJ is precluded from relying on the grids and must consult with a vocational expert. Id. The burden of showing that a non-exertional limitation is not substantial rests on the ALJ. Lawrence v. Astrue, 337 F.App'x. 579, 584 (7th Cir. 2009).
The ALJ failed to meet that burden. McGrath has non-exertional limitations in the form of vision problems relating to migraines and photophobia. The ALJ, therefore, could only rely on the grids if McGrath's vision problems did not substantially reduce the range of work he could perform. In her decision, however, the ALJ made no mention of whether or how she determined that this limitation was not substantial, and instead rested on assumption. The Court, therefore, held that the ALJ's reliance on the grids was not supported by substantial evidence. McGrath v. Astrue, 2012 U.S. Dist. LEXIS 50546, at *23 (N.D. Ill. April 10, 2012). Because the ALJ did not demonstrate that McGrath's vision problems were not substantial and did not consult a vocational expert, her position was not substantially justified.
The Commissioner now argues that the ALJ's error was simply a "deficiency of articulation." Def.'s Resp. 2. In support of this argument, he points to the Court's statement that "the ALJ laid out no discussion of the effect of McGrath's non-exertional limitations in step five." McGrath, 2012 U.S. Dist. LEXIS 50546, at *22. The Commissioner's assertion that a reversal for lack of articulation does not require a finding that the Government's position was not substantially justified is correct. Cunningham v. Barnhart, 440 F.3d 862, 865 (7th Cir. 2006). The reversal here, however, ...