United States District Court, N.D. Illinois, Eastern Division
WANDA D. MORGAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER United States Magistrate Judge
plaintiff, Wanda Morgan, originally filed this action seeking
judicial review of the final decision of the Commissioner of
Social Security denying her application for Supplemental
Security Income benefits ("SSI") (doc # 17: Motion
for Reversal or Remand). On June 9, 2016, we reversed and
remanded the decision to the Administrative Law Judge
("ALJ"), Morgan v. Colvin, No. 14-cv-6513,
2016 WL 3235061 (N.D.Ill. June 9, 2016) (doc. # 30:
Order on Motion for Sum. J.). Ms. Morgan has now filed a
motion seeking reimbursement of $8, 254.92 in attorney's
fees and costs pursuant to the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412 (2000) (doc. # 33:
Plaintiffs Mot. for Fees). For the reasons set forth below,
we grant plaintiffs motion and award attorney's fees and
costs in the amount requested.
facts of this case have been laid out in detail in our
previous decision to remand and thus we will summarize only
the relevant facts from that opinion (doc. #31: Memorandum
Opinion and Order ("Mem. Op.")). Ms. Morgan's
motion for reversal or remand argued: (1) that the ALJ failed
to properly consider her hand limitations stemming from her
Carpel Tunnel Syndrome ("CTS"), (2) that the
ALJ's adverse credibility determination was flawed, and
(3) that the RFC was unsupported by substantial evidence in
the record because the ALJ rejected the only medical opinion
in the record (Mem, Op. at 5). In our opinion, we concluded
that the ALJ properly supported her decision with respect to
Ms. Morgan's CTS (Id. at 12). With respect to
the ALJ's determination of Ms. Morgan's RFC, we found
that it was generally within her authority to consider and
then reduce the RFC suggested by Dr. Vincent from medium to
light (Mem. Op. at 6). Furthermore, at least with respect to
Ms. Morgan's CTS, the ALJ explained why she found Ms.
Morgan retained the ability to work at a light exertion level
remanded the case on a single issue, holding that the ALJ
failed to justify her light RFC determination as it applied
to Ms. Morgan's arthritis in her knees (Mem. Op. at 6).
Specifically, we noted that the medical examination and
medical opinion on which the ALJ relied for her RFC
determination both predate Ms. Morgan's arthritis
diagnosis Id. Because the ALJ failed to explain the
path by which she determined that the evidence showed that
Ms. Morgan could perform light duty work despite having what
she found to be the severe impairment of arthritis, we found
that the ALJ failed to build an "accurate and logical
bridge" from the evidence to the RFC determination on
that issue (Mem. Op. at 7). We thus granted Ms. Morgan's
motion and remanded the case (Id.).
the EAJA, a district court may award attorney's fees
where (1) the claimant is a "prevailing party;" (2)
the government was not substantially justified in its
position; (3) no "special circumstances" make an
award unjust; and (4) the fee application is timely and
supported by an itemized statement. Golembiewski v.
Barnhart, 382 F.3d 721, 723-24 (7th Cir.2004); 28 U.S.C.
§ 2412(d)(1)(A), (B). The Commissioner has not
challenged Ms, Morgan's status as a prevailing party; nor
has the government argued that there are special
circumstances here that would make a fee award unjust. The
government challenges two aspects of the petition.
First, the government argues that no fees should be
awarded at all because its position was substantially
justified. Second, the government argues that if
fees are awarded, they should be reduced from the amount
plaintiff seeks. We address each argument in tum.
government has the burden of establishing that its position
was substantially justified, and to do so must show: (1) a
reasonable basis in truth for the facts alleged; (2) a
reasonable basis in law for the theory propounded; and (3) a
reasonable connection between the facts alleged and the
theory propounded. Golembiewski, 382 F.3d at 724;
United States v. Hallmark Construction Co., 200 F.3d
1076, 1078-79 (7th Cir.2000); Suide v. Astrue, No.
11 C 1467, 2011 WL 6425712 at *1 (N.D.I11. December 22,
2011). EAJA fees may be awarded if the government's
pre-litigation conduct, including the ALJ decision itself, or
its litigation position are not substantially justified, but
the district court is to make only one determination for the
entire civil action. Golembiewski, 382 F.3d at 724.
determining whether the Commissioner has met its burden, we
note that not every reason for remand reflects a lack of
substantial justification. "[T]he ALJ's opinion
might offer merely a "cursory and inadequate"
analysis of an important point, but that shortcoming alone
usually will not be enough to poison the opinion-or the
commissioner's defense of the opinion." Bassett
v. Astrue, 641 F.3d 857, 859 (7th Cir. 2011) (citing
United States v. Thouvenot, Wade & Moerschen, Inc.,
596 F.3d 378, 387 (7th Cir, 2010)), The Bassett
court explained that "the requirement that the ALJ must
articulate an assessment of the evidence is 'deliberately
flexible, ' so the ALJ's failure to 'connect all
the dots' in the analysis-and the commissioner's
defense of [the analysis]-is likely to be grounded in a
reasonable, albeit erroneous, interpretation of the facts and
law." 641 F.3d at 859-60 (citing Cunningham v.
Barnhart, 440 F.3d 862, 864-65 (7th Cir. 2006)).
"It typically takes something more egregious than just a
run-of-the-mill error in articulation to make the
commissioner's position unjustified, " such as
"ignoring or mischaracterizing a significant body of
evidence, or the commissioner's defending the ALJ's
opinion on a forbidden basis." Id.
Commissioner argues that the ALJ's opinion represents a
"run of the mill error in articulation, " implying
that it was therefore justified in defending the ALJ's
opinion that Ms. Morgan could perform work at the light
exertional level rather than at the medium exertional level
as opined by the agency examiner - before the diagnosis and
treatment for plaintiffs arthritic knees (doc. # 36:
Commissioner's Response to PI. Mot. for Fees). However,
we disagree that the error that caused us to remand was
merely one of articulation; the error was in failing to
develop the medical record to ascertain what degree of
limitation resulted from an impairment the ALJ herself found
to be severe. The Commissioner provides no legal support for
the proposition that an ALJ's determination of an RFC
that is not supported by medical opinion or other evidence
represents such a "run of the mill" error.
memorandum seeking affirmance of the ALJ's decision, the
government cited Dampeer v. Astrue, 826 F.Supp.2d
1073, 1085 (N.D.Ill. 2011), for the proposition that an AL.I
is justified in reducing an RFC from that assessed by a
medical opinion - in that case, a reduction to sedentary work
after state agency doctors concluded that the claimant could
perform light work with certain limitations. Id.
However, that citation was inopposite because here, unlike in
Dampeer, the ALJ had absolutely no basis for making
a determination about Ms. Morgan's ability to work with
arthritis in her knees. Indeed, the Commissioner's sole
argument that the ALJ properly considered Ms. Morgan's
arthritis is that the ALJ stated that she reduced Dr.
Vincent's RFC in consideration of, among other things,
Ms. Morgan's arthritis (doc. # 28: Commissioner's
Mem. in Support of Mot. for Sum. J. at 11). This is not a
case in which the evidence existed and the ALJ merely did a
poor job of explaining it; the ALJ had no medical opinions
about Ms. Morgan's arthritis at all. Therefore, by
assigning Ms. Morgan an RFC to perform light work despite her
being diagnosed with arthritis, the ALJ impermissibly
"played doctor." Myles v. Astrue, 582 F.3d
672, 677 (7th Cir. 2009).
grant EAJA fees when an ALJ contravenes longstanding judicial
precedent when determining a claimant's RFC. Stewart
v. Astrue,561 F.3d 679, 683-84 (7th Cir. 2009). An
ALJ's act of "playing doctor" is just such a
well-recognized error, and thus the Commissioner's
continued support of the ALJ's decision was not
substantially justified. See, e.g., Rohan v. Chater,98 F.3d 966, 970 (7th Cir. 1996); Bailey v.
Barnhart,473 F.Supp.2d 842, 849 (N.D.Ill. 2006)
(granting plaintiffs EAJA ...