United States District Court, S.D. Illinois
CYNTHIA L. ALLEN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter is before the Court on plaintiff's Motion (Doc.
32) for Attorney's Fees Under the Equal Access to Justice
Act. Defendant filed a response (Doc. 35) in opposition and
the plaintiff filed a reply (Doc. 36).
to the Equal Access to Justice Act, 28 U.S.C.
§2412(d)(1)(A), the Court shall award attorney's
fees and expenses to a prevailing party in a civil action
against the United States, including proceedings for judicial
review of agency action, unless the government's position
was substantially justified. The hourly rate for
attorney's fees is not to exceed $125.00 per hour
“unless the court determines that an increase in the
cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.” §2412(d)(2)(A).
case was remanded to the Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. §405(g).
Plaintiff is, therefore, the prevailing party. See,
Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
response to the motion, the Commissioner argues that the
Court should not award fees because the government's
position was substantially justified. The EAJA does not
define the term “substantially justified, ” and
the Seventh Circuit has recognized that its meaning in this
context is not “self-evident.” U.S. v.
Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 381
(7th Cir. 2010). However, in view of the purpose
of the Act, substantially justified means something more than
“not frivolous;” the government's position
“must have sufficient merit to negate an inference that
the government was coming down on its small opponent in a
careless and oppressive fashion.” Id., at
government's position is substantially justified where it
had a “reasonable basis in law and fact, that is, if a
reasonable person could believe the position was
correct.” Golembiewski v. Barnhart, 382 F.3d
721, 724 (7th Cir. 2004)(internal citations
omitted). The Commissioner bears the burden of demonstrating
that her position was substantially justified, and the Court
must make a determination based on an assessment of both the
government's pre-litigation and litigation conduct,
including the decision of the ALJ. Ibid.
evidence in the administrative record and the specifics of
the ALJ's decision are discussed in detail in the
Memorandum and Order (Doc. 30) remanding the case.
argued that the ALJ erred in assessing her credibility, in
weighing the medical opinions, and in assessing her residual
functional capacity (“RFC”). This Court rejected
her first point, found merit in her third point, and deferred
ruling on her second point.
Court concluded that the ALJ erred in assessing
plaintiff's ability to use her hands. The ALJ found that
she was limited to frequent, as opposed to occasional,
handling and fingering. This Court noted that Ms. Allen's
ability to use her hands is dispositive of her application
for benefits because the ALJ also found that she was capable
of only sedentary work. The agency's own guidance
provides “Most unskilled sedentary jobs require good
use of the hands and fingers for repetitive hand-finger
actions. Any significant manipulative limitation of an
individual's ability to handle and work with small
objects with both hands will result in a significant erosion
of the unskilled sedentary occupational base.” SSR
96-9P, 1996 WL 374185, p. 8. The ALJ acknowledged that
sedentary work requires “good bilateral manual
dexterity” and, if plaintiff were limited to only
occasional handling and fingering, she would be deemed to be
disabled. See, Tr. 848.
recognizing that a limitation to only occasional handling and
fingering would mandate that Ms. Allen's application be
granted, the ALJ failed to explain why he concluded that she
was capable of frequent handling and fingering. In addition,
he failed to explain how he viewed the significance of
evidence that plaintiff had a tremor in her right hand. This
Court found that these two errors required that the
Commissioner's final decision be reversed and remanded.
Commissioner characterizes the ALJ's error as “an
error of articulation, ” and argues an error of
articulation does not necessitate a finding that the
government's position was not substantially
justified.” Doc. 35, p. 5. The Commissioner cites
Stein v. Sullivan, 966 F.2d 317, 319-320
(7th Cir. 1992), in support of this argument.
However, Stein did not establish a per se
rule that attorney's fees will not be awarded whenever
the error was a failure to meet the articulation requirement.
See Conrad v. Barnhart, 434 F.3d 987, 991
(7th Cir. 2006).
Commissioner also points out that the Court characterized the
issue of whether the ALJ built the requisite logical bridge
between the evidence and his conclusion as a “close
question.” Doc. 35, pp. 3-4. This is an incorrect
reading of the Court's decision. The Court characterized
as close the issue of whether plaintiff should be limited to
occasional or frequent handling and fingering. The Court
explained that the question “is a close one because of
the timing of the diagnosis of carpal tunnel syndrome
relative to the date last insured.” Doc. 30, p. 21.
recognized that plaintiff's ability to use her hands was
dispositive, the ALJ's failure to explain why he decided
she was capable of frequent handling and fingering, and his
failure to explain how he viewed the evidence of a hand
tremor was not substantially justified. Compounding the
problem, as the Court noted, the Commissioner failed to meet
plaintiff's argument head-on in her brief. See
Doc. 30, p. 22. It is difficult to now accept her argument
that her position was substantially justified when she failed
to justify it in her merits brief.
Court finds that the Commissioner's position was not
substantially justified, and therefore finds that plaintiff
is entitled to an ...