United States District Court, N.D. Illinois, Eastern Division
JAMES R. BLACKMON, Claimant,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Respondent.
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert, Magistrate Judge.
matter is before the Court on an Application for
Attorneys' Fees Under the Equal Access for Justice Act
[ECF No. 36], On January 10, 2014, Claimant James Blackmon
filed a complaint for judicial review of an administrative
decision [ECF No. 1] denying his applications for disability
insurance benefits and supplemental security income. On June
21, 2106, this Court issued a Memorandum Opinion and Order
[ECF No. 34] remanding this case to the Social Security
Administration for further explanation. On September 16,
2016, Claimant filed the instant Application Attorneys'
Fees Under the Equal Access for Justice Act
("EAJA"), seeking attorneys' fees in an amount
of $4, 332.26. On October 5, 2016, the Commissioner filed a
response [ECF No. 39] opposing an award of fees and arguing
that her position was substantially justified. On October 11,
2016, Plaintiff filed her reply [ECF No. 40]. This matter is
ripe for decision.
EAJA provides that a court shall award attorney fees to a
"prevailing party" in a civil action against the
United States that is submitted within thirty days of final
judgment "unless the court finds that the position of
the United States was substantially justified or that special
circumstances make an award unjust." 28 U.S.C. §
2412(d)(1); see United States v. Hallmark Const.
Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (setting
forth the elements of § 2412(d)(1)). In this case, it is
uncontested that Claimant filed the instant application for
attorney's fees in a timely manner and that Claimant is a
prevailing party because the Court reversed and remanded the
Commissioner's decision in its June 21, 2016 Memorandum
Opinion and Order [ECF No. 34]. See Shalala v.
Schaefer, 509 U.S. 292, 300-302 (1993); Bassett v.
Astrue, 641 F.3d 857, 859 (7th Cir. 2011).
Commissioner, however, argues that her position was
substantially justified, precluding an award of
attorneys' fees under the EAJA in this case. See
28 U.S.C. § 2412(d)(1)(B); see also Scarborough, v.
Principi, 541 U.S. at 405; Hallmark Constr.,
200 F.3d at 1078-79. It is the Commissioner's burden to
prove that her position was "substantially
justified" in law and fact at both the administrative
and court stages of adjudication. Pierce v.
Underwood, 487 U.S. 552, 565 (1988); Commissioner,
I.N.S. v. Jean, 110 S.Ct. 2316, 2319 n.6 (1990);
Cummings v. Sullivan, 950 F.2d 492, 497 (7th Cir.
1991). In determining whether the Commissioner's position
was substantially justified, a court is to consider both the
denial of benefits at the administrative level and the
Commissioner's defense of that denial before the Court.
Cunningham v. Barnhart, 440 F.3d 862, 864 (7th Cir.
2006); Golembiewski v. Barnhart, 382 F.3d 721, 724
(7th Cir. 2004). A position "is substantially justified
if a reasonable person could conclude that the ALJ's
opinion and the commissioner's defense of the opinion had
a rational basis in fact and law." Bassett v.
Astrue, 641 F.3d 857, 859 (7th Cir. 2011) (citing
Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.
1994)). Accordingly, even a position that was unsuccessful on
the merits may have been substantially justified. See
Pierce v. Underwood, 487 U.S. 552, 569 (1987)
determination of whether the Commissioner's position is
substantially justified is within the discretion of a
district court, and is "not susceptible to a firm rule
or even a 'useful generalization."' Bassett
v. Astrue, 641 F.3d at 859 (citing Underwood,
487 U.S. at 561-62). However, existing case law provides some
guidance. An ALJ's failure to articulate her reasoning
generally by itself is not reason to find the
Commissioner's position not substantially justified.
See Bassett v. Astrue, 641 F.3d at 859-60
("[I]t typically takes something more egregious than
just a run-of-the-mill error in articulation to make the
commissioner's position unjustified -something like the
ALJ's ignoring or mischaracterizing a significant body of
evidence, or the commissioner's defending the ALJ's
opinion on a forbidden basis."); Cunningham v.
Barnhart, 440 F.3d 862, 865 (7th Cir. 2006) (finding the
Commissioner's position substantially justified despite
the ALJ's failure to "connect all the dots in his
analysis" of the plaintiffs credibility).
district court should determine whether the
Commissioner's overall position, not just its position
related to the issues on which the court granted remand, was
substantially justified. See Stewart v. Astrue, 561
F.3d 679, 683-84 (7th Cir. 2009) ("EAJA fees are not
determined by the number of successful arguments, but a
party's success on a single claim will rarely be
dispositive of whether the government's overall position
was substantially justified."). A position is less
likely to be justified, however, if "the ALJ and
Commissioner violated clear and long judicial precedent and
violated the Commissioner's own Ruling and
Regulations" or if the ALJ committed numerous errors in
denying benefits. Golembiewski, 382 F.3d at 724.
Additionally, "[s]trong 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
Court finds that the Commissioner's position was not
substantially justified in this case. Lack of substantial
justification is shown by the fact that ALJ did not comply
with Social Security Rule ("SSR") 96-7p, now
superseded by SSR 16-3p, in explaining how she evaluated
Claimant's credibility. [ECF No. 34, at 5-6]. In
particular, contrary to this Circuit's case law, the ALJ
relied on Claimant's sparse treatment without determining
whether there were good reasons for Claimant's infrequent
treatment. See Craft v. Astrue, 539 F.3d 668, 679
(7th Cir. 2008); SSR 16-3p; [ECF No. 34, at 6]. The ALJ also
failed to give good reasons for affording little weight to
the medical opinion of Claimant's treating physician Dr.
Crawford. [ECF No. 34, at 8]; see also 20 C.F.R.
Commissioner argues that a run-of-the-mill articulation error
is not sufficient to make her position unjustified, relying
upon Bassett v. Astrue, 641 F.3d 857 (7th Cir. 2011)
and Cunningham v. Barnhart, 440 F.3d 862 (7th Cir.
2006). However, this case is readily distinguishable from the
cases cited by the Commissioner, and the Court finds that the
ALJ's errors exceeded a mere lack of articulation. In
Bassett, the Seventh Circuit held that the ALJ's
error did not taint the Commissioner's position because
"in making this mistake the ALJ did not ignore,
mischaracterize, selectively cite, or otherwise bungle a
significant body of relevant evidence."
Bassett, 641 F.3d at 860; see also Golembiewski
v. Barnhart, 382 F.3d 721, 724-725 (7th Cir.2004)
(reversing denial of fee request because the government
mischaracterized medical evidence and ignored other
significant evidence concerning plaintiffs limitations). In
Cunningham, the Seventh Circuit applied similar
reasoning. 440 F.3d at 864-865.
case, however, as discussed in greater detail in the
Court's Memorandum Opinion and Order remanding the case
for further proceedings, the ALJ did not merely fail to
articulate her analysis, but also mischaracterized or
overstated evidence, including an erroneous assertion that
Claimant's ability to ambulate without a cane at a slower
pace somehow undercut his assertion that he uses a cane to
reduce pain to his left ankle. See [ECF No. 34, at
5-6.] The ALJ also ignored testimony regarding the side
effects of Claimant's medication. [ECF No. 34, at 5.] The
Court also noted that the ALJ selectively cited "only
the medical evidence favoring the denial of benefits."
[ECF No. 34, at 9.] These are exactly the type of errors that
are contrary to "clearly established statutory and court
precedent, " indicating that the Commissioner's
position before the agency was not substantially justified.
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
of these reasons, the Court grants Claimant's Application
for Attorneys' Fees Under the Equal Access for Justice
Act [ECF No. 36] and awards his ...