United States District Court, S.D. Illinois
PHIL GILBERT, UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Shelly Klein's Application for
Attorney's Fees Under the Equal Access to Justice Act.
(Doc. No. 28). Defendant Commissioner of Social Security
filed a response, (Doc. No. 29), and Plaintiff filed a reply,
(Doc. No. 30).
Equal Access to Justice Act (“EAJA”) instructs
the Court to award attorney's fees and expenses to
“prevailing parties” in civil actions brought
against the United States, including proceedings for judicial
review of agency action, unless the government's position
was “substantially justified.” 28 U.S.C. §
is a prevailing party under the EAJA. This case initially
appeared before the Court in January 2016. (Doc. 1). In
January 2017, the Court reversed and remanded the
Commissioner's final decision denying Plaintiff's
application for DIB and SSI benefits pursuant to sentence
four of 42 U.S.C. § 405(g). (Doc. 26). And a plaintiff
that wins a remand order pursuant to sentence four of §
405(g) receives prevailing-party status. Shalala v.
Schaefer, 509 U.S. 292, 301-302 (1993). Accordingly,
Plaintiff is a prevailing party for the purposes of this
attorney's fees determination.
awarding attorney's fees is inappropriate where the
government's position was substantially justified. The
meaning of “[t]he key statutory term,
‘substantially justified,' is neither defined nor
self-evident.” United States v. Thouvenot, Wade
& Moerschen, Inc., 596 F.3d 378, 381 (7th Cir.
2010). But considering the underlying purposes of the EAJA,
it means something more than nonfrivolous; 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 381- 82. “The
Commissioner bears the burden of demonstrating that her
position was substantially justified.” Marcus v.
Shalala, 12 F.3d 1033, 1036 (7th Cir. 1994).
Seventh Circuit adopted the Third Circuit's three-part
standard for determining whether the government's
position is substantially justified under the EAJA: “
‘[t]o satisfy its burden the government must
demonstrate (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 legal theory advanced.' ” Phil
Smidt & Son, Inc. v. NLRB, 810, F.2d 638, 642 (7th
Cir. 1987) (citing Donovan v. DialAmerica Mktg.,
Inc., 757 F.2d 1376, 1389 (3d Cir. 1985)).
Court's determination must be based on an assessment the
government's conduct in both the pre-litigation and
litigation contexts. United States v. Hallmark Constr.
Co., 200 F.3d 1076, 1080- 81 (7th Cir. 2000). “A
decision by an ALJ constitutes part of the agency's
pre-litigation conduct.” Golembiewski v.
Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). And this
Court's reversal of the ALJ is not conclusive evidence
that the government's position lacked substantial
justification. See Hallmark Constr. Co., 200 F.3d at
1079; Pierce v. Underwood, 487 U.S. 552, 569 (1988)
(“Conceivably, the Government could take a position
that is not substantially justified, yet win; even more
likely, it could take a position that is substantially
justified, yet lose.”). The Court “must be
careful not to let [its] superseded view of the merits color
[its] determination of whether there was a substantial
justification for the government's position.”
Thouvenot, Wade & Moerschen, Inc., 596 F.3d at
384. It “takes something more egregious than just a
run-of-the-mill error in articulation to make the
commissioner's position unjustified . . . .”
Bassett v. Astrue, 641 F.3d 857, 860 (7th Cir.
this Court, the Commissioner defended the ALJ's
conclusion that Plaintiff had “moderate”
difficulties maintaining concentration, persistence, or pace
(as opposed to “marked” difficulties). The ALJ
noted that Plaintiff acknowledged difficulties concentrating
depending on “whether she has severe pain or crying
spells” and difficulties “paying attention,
staying on task, finishing tasks, and handling stress and
changes in routine.” (Doc. No. 16-2 at 21). In
determining that Plaintiff had only moderated difficulties,
the ALJ gave “little weight” to counselor
McMullin's determination that Plaintiff experienced
“marked limitations in understanding and remembering
detailed instructions and maintaining attention and
concentration, ” (Doc. No. 16-2 at 29), because it
seemingly contradicted the fact that Plaintiff “managed
to complete her activities of daily living, attend church
occasionally, work 18-24 hours a week [as a dry-cleaning
presser], get her daughter up and off to school, and read,
” (Doc. No. 16-2 at 28-29). Additionally, the ALJ gave
“partial weight” to counselors Altomari and
Markway's independent determinations that Plaintiff
“had moderate limitations in concentration, persistence
or pace and could understand, remember and follow complex
instructions.” (Doc. No. 16-2 at 29).
Court reversed and remanded the ALJ's denial of
Plaintiff's application. The Court found that the ALJ
erred in two ways. First, the ALJ asked improper
hypotheticals to vocational experts that failed to include
all of Plaintiff's limitations supported by
medical evidence in the record, as required by Seventh
Circuit precedent in Steward v. Astrue, 561 F.3d
679, 684-85 (7th Cir. 2009). (Doc. No. 26 at 9-10).
Specifically, the Court cited Steward for the
proposition that limiting a hypothetical to simple, unskilled
work does not account for a claimant's difficulty with
memory, concentration, or mood swings. Id. The Court
extended this reasoning to similar hypotheticals limited to
semi-skilled work. (Doc. No. 26 at 9-10). Second, the ALJ
erred by not affording greater weight to the counselors'
opinions. (Doc. No. 26 at 11).
response to Plaintiff's Application for Attorney's
Fees, the Commissioner points to medical evidence on the
record to support its contention that the government's
position was substantially justified. Specifically, the
Commissioner notes Plaintiff's work activity and the
counselors' opinions maintaining that Plaintiff could
understand, remember and carry out simple work instructions.
The Court agrees.
Commissioner met its burden of establishing that the
government's position was substantially justified.
Regardless of whether the ALJ's ultimate determination
was correct, the Court finds that the government's
interpretation of the factual record was reasonable. The ALJ
decision evidences an extensive review of the record and
careful consideration of the counselors' opinions. The
ALJ decision also relied primarily on the counselors'
opinions, rather than the erroneous hypotheticals presented
to the vocational experts-the discussion of the evidence was
more than adequate.
the government's position that the hypotheticals posed to
the vocational expert were proper had a reasonable basis in
law and fact. While it is true that the employing terms like
“simple, repetitive tasks” is insufficient,
see id., some ALJ hypotheticals omitting the terms
“concentration, persistence and pace” were
affirmed by the Seventh Circuit where alternative phrasing
specifically excluded tasks that someone with the
claimant's limitations would be unable to perform,
O'Connor-Spinner v. Astrue, 627 F.3d 614, 619
(7th Cir. 2010). Here, the Commissioner asserts that the ALJ
communicated the fact that Plaintiff could maintain attention
and concentration to carry out semi-complex tasks.
Specifically, the vocational expert was asked to consider an
individual “able to understand, remember, and carry out
simple to moderately complex instructions consistent with
semiskilled work, and a person can tolerate frequent but not
constant contact with coworkers, supervisors, and the general
public.” (Doc. No. 16-2 at 77). And although the Court
will not revisit the merits of the Commissioner's
argument and our subsequent reversal, the Court also notes
that the vocational expert heard testimony from Plaintiff
that spoke specifically to her memory and concentration.
(Doc. No. 16-2 at 61). Cf. id. (“[N]o evidence
exists here that the VE reviewed Ms.
O'Connor-Spinner's medical history, as opposed to
just her work history, or heard testimony about the
limitation.”) (emphasis added); see also
Steele v. Barnhart, 290 F.3d 936, 942 (7th Cir. 2002)
(maintaining that there is an exception to the requirement
that the ALJ's hypothetical specifically include all the
claimant's limitations where the record indicates that
the vocational expert independently learned of the
limitations through other questioning at the hearing).
this Court takes care to address the government's overall
conduct, rather than considering only the one challenged
issue on which Plaintiff previously prevailed. See
Steward, 561 F.3d at 683. And although the Court is not
excusing the ALJ's errors, a reasonable person could
conclude that both the ALJ's opinion and the
Commissioner's defense of the opinion had a rational
basis in fact and law.
the Court DENIES Plaintiff Shelly
Klein's Application for Attorney's Fees Under the