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Smothers v. Berryhill

United States District Court, W.D. Wisconsin

May 14, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         On September 21, 2017, the court issued an order remanding this case to the commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g) and entered judgment. (Remand Order (dkt. #16); J. (dkt. #17).) Before the court are: (1) plaintiff's motion for an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the “EAJA”), in the amount of $8, 104.38 and expenses in the amount of $20.22; and (2) plaintiff's motion for additional fees under the EAJA for $1, 162.50.[1](Mot. Atty's Fees (dkt. #18) 1; Suppl. Mot. Atty's Fees (dkt. #29) 2.) The government opposes the award of fees, arguing that the government's “position was substantially justified.” The government also argues that an award of costs for certified mailing is unavailable under 28 U.S.C. § 1920. (Def.'s Opp'n (dkt. #27) 1, 3.) For the reasons addressed below, plaintiff's award requests will be granted.


         I. Request for Attorney's Fees

         Except as otherwise provided by statute, the EAJA provides that

a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded . . . incurred by that party in any civil action . . ., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, 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)(A). When seeking fees, the prevailing party must (1) show eligibility for fees, (2) detail the attorney's hours and the rate(s) at which fees were calculated, and (3) “allege that the position of the United States was not substantially justified.” 28 U.S.C. § 2412(d)(1)(B). To be eligible, the party must have been the prevailing party “whose net worth did not exceed $2, 000, 000 at the time the civil action was filed, ” and there must be no “special circumstances mak[ing] an award unjust.” 28 U.S.C. §§ 2412(d)(1)(A), 2412(d)(2)(B)(i).

         Here, the government maintains that this court's remand decision “did not suggest that [the commissioner's] arguments in federal court were meritless or poorly-supported by legal and factual analysis, ” but rather suggested that “the ALJ's error was one of articulation.” (Opp'n (dkt. #27) 2-3.) As such, it argues, her “position was substantially justified as a whole.” (Id. at 3.) In response, plaintiff accuses the government of “minimiz[ing] and understat[ing] the reasons for the Court's remand order, ” arguing that the government failed to meet its burden of establishing substantial justification. (Pl.'s Reply (dkt. #28) 2, 5.)

         “The commissioner's 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.” Basset v. Astrue, 641 F.3d 857, 859 (7th Cir. 2011) (citing Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1996)). The Seventh Circuit has articulated a three-part standard, requiring “the government to show that its position was grounded in: (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 propounded.” Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (citing United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000)).

         While this “analysis is not susceptible to a firm rule or even a ‘useful generalization, '” Bassett, 641 F.3d at 859 (quoting Pierce v. Underwood, 487 U.S. 552, 562 (1988)), “it typically takes something more egregious than a run-of-the-mill error in articulation to make the commissioner's position unjustified, ” id. at 860 (citing Golembiewski, 382 F.3d at 724). Simple gaps in the ALJ's analytical reasoning, even if defended by the commissioner, “is likely to be grounded in a reasonable, albeit erroneous, interpretation of the facts and law.” Id. at 859-60 (citing Cunningham v. Barnhart, 440 F.3d 862, 864-65 (7th Cir. 2006)). On the other hand, an ALJ's failure to follow the commissioner's rules and regulations or an ALJ's disregard or mischaracterization of evidence can establish that the government's position was not substantially justified. See Golembiewski, 382 F.3d at 724-25.

         This case meets the three-factor Golembiewski standard. As this court recognized:

the ALJ failed to address material evidence in plaintiff's medical records suggesting his reports of worsening shortness of breath and mobility by August of 2011. The ALJ's decision also includes no explicit discussion of plaintiff's subjective complaints of shortness of breath and difficulty walking, standing and sitting that he made at the hearing.

(Remand Order (dkt. #16) 8 (emphasis original).)[2] Likewise, this court explained that “plaintiff's capability to stand, walk and sit for certain periods of time” needed to be fleshed out because he would have been found disabled if limited to sedentary work. (Id.) Accordingly, the cause for remand went beyond simple “articulation error”: the court could neither provide “meaningful review” nor “confidently assess the agency's rationale.” (Id. (quoting Walters v. Astrue, 444 Fed.Appx. 913, 917 (7th Cir. 2011).)[3] Cf. Bassett, 641 F.3d at 860 (affirming the district court's substantially justified finding where ALJ committed an “articulation error” by failing to explain the date claimant's RFC deteriorated, noting that “the ALJ did not ignore, mischaracterize, selectively cite, or otherwise bungle a significant body of relevant evidence” and that pinpointing the exact day would be “difficult to determine”).

         Regardless, the government failed to meet its burden to prove that its conduct and positions were substantially justified. The government has further not objected to the number of hours billed or the hourly rate requested. Plaintiff devoted the bulk of his supporting brief to the appropriateness of an hourly rate above the $125/hour awardable under 28 U.S.C. § 2412(d)(2)(A)(ii). (See Pl.'s Opening Br. (dkt. #19) 4-9.) See 28 U.S.C. § 2412(d)(2)(A)(ii) (“attorney fees shall not be awarded in excess of $125 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 ...

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