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Morgan v. Berryhill

United States District Court, N.D. Illinois, Eastern Division

March 16, 2017

WANDA D. MORGAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.


          SIDNEY I. SCHENKIER United States Magistrate Judge

         The 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.[3]


         The 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).[4] 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 (Id.).

         We 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.).


         Under 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.


         The 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.

         In 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.

         The 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.

         In its 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).

         We will 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 ...

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