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Joshua R. Thorne v. Michael J. Astrue

January 5, 2012


The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge



Pending before the Court is a motion by plaintiff Joshua R. Thorne for an award of attorney fees under the Equal Access to Justice Act (the "EAJA"), 28 U.S.C. § 2412. Plaintiff seeks attorney fees under the EAJA because this Court granted his motion for judgment on the pleadings and remanded his application for Social Security disability insurance benefits to defendant, the Commissioner of Social Security ("Commissioner"), for further proceedings. (See Dkt. No. 21, adopting Report and Recommendation of Hon. Hugh B. Scott.) Plaintiff believes that the Commissioner's opposition to his application was not substantially justified, meaning that the EAJA requires the Commissioner to pay his attorney fees. The Commissioner counters that the Court rejected many of plaintiff's arguments along with his request for outright reversal as opposed to remand.

The Commissioner argues further that plenty of evidence supported the opposition to plaintiff's claims, despite the remand for further factual development.

The Court has deemed the motion submitted on papers under Rule 78(b) of the Federal Rules of Civil Procedure. For the reasons below, the Court grants the motion and awards plaintiff attorney fees in the amount of $5,950.00


The underlying substance of this case concerned plaintiff's efforts to obtain disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401--433. Plaintiff first applied for disability insurance benefits on May 23, 2006. Plaintiff sought disability insurance benefits because he claimed threshold-level impairments caused by depression, personality disorders, arthritis in his right hand, and an injury to his right eye. The Commissioner denied plaintiff's application and upheld that denial through all administrative appeals. In response, plaintiff filed his complaint here on July 21, 2010. The parties subsequently cross-moved for judgment on the pleadings. On September 23, 2011, Magistrate Judge Scott recommended remanding this case to the Commissioner because the vocational expert who testified at plaintiff's administrative hearing did not consider plaintiff's history of poor job attendance and social interaction when opining that a hypothetical person in plaintiff's situation could do most of plaintiff's past relevant work. The parties filed no objections to the Report and Recommendation. After its own review, the Court adopted the Report and Recommendation on November 1, 2011.

Having won at least a chance to make a new presentation to the Commissioner, plaintiff now seeks an award of attorney fees under the EAJA. In support of his motion, plaintiff takes the incomplete hypothetical questions posed to the vocational expert at the administrative hearing and casts them as a violation of Social Security Ruling 82-62. See Soc. Sec. Ruling 82-62 ("The decision as to whether the claimant retains the functional capacity to perform past work which has current relevance has far-reaching implications and must be developed and explained fully in the disability decision. Since this is an important and, in some instances, a controlling issue, every effort must be made to secure evidence that resolves the issue as clearly and explicitly as circumstances permit."), available at SSR82-62-di-02.html (last visited Jan. 4, 2012); see also 20 C.F.R. § 404.1520(e) ("If your impairment(s) does not meet or equal a listed impairment, we will assess and make a finding about your residual functional capacity based on all the relevant medical and other evidence in your case record, as explained in § 404.1545."). Plaintiff argues that the Commissioner's failure to follow established regulations directly created the need to remand and that such a failure cannot be substantially justified. The Commissioner counters that plaintiff's counsel was present at the administrative hearing and had an opportunity to ask the vocational expert any hypothetical questions that he deemed necessary. Additionally, the Commissioner argues that the record contains sufficient evidence that plaintiff could perform his past relevant work as a file clerk and landscape laborer, since those jobs did not require more than occasional interaction with co-workers and the general public. Under these circumstances, according to the Commissioner, the hypothetical questions that the Court found missing from the administrative hearing would not change the outcome of plaintiff's application for benefits, thus making the Commissioner's litigation position substantially justified.

In anticipation of an order from the Court awarding attorney fees, plaintiff's counsel has submitted itemized billing supporting an award of attorney fees in the amount of $5,950.00. The Commissioner has not submitted any arguments addressing the proposed amount of any award of attorney fees. Instead, the Commissioner objects to the request from plaintiff's counsel to have any attorney fees made payable to him instead of plaintiff. The Commissioner asserts that the United States Supreme Court has settled definitively whether an award of attorney fees under the EAJA can be made payable to an attorney as opposed to a litigant. See Astrue v. Ratliff, ___ U.S. ___, 130 S. Ct. 2521 (2010).


A. Substantial Justification

The first issue that the Court will resolve is whether any award of attorney fees is appropriate here. "[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), 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). "Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought." Id. § 2412(d)(1)(B). "[T]he term 'substantially justified' means justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person . . . . To be 'substantially justified' means, of course, more than merely undeserving of sanctions for frivolousness." Comm'r, INS v. Jean, 496 U.S. 154, 158 n.6 (1990) (internal quotation marks and citation omitted); see also Sotelo-Aquije v. Slattery, 62 F.3d 54, 57 (2d Cir. 1995) ("To prove that its position was substantially justified, the government bears the burden of showing that its position had a reasonable basis in both law and fact.") (internal quotation marks and citations omitted).

Here, the Commissioner has failed to meet his burden of showing that defending an incomplete administrative hearing was reasonable. As the Court found previously, the Commissioner's denial of benefits rested on an opinion from the vocational expert that did not address plaintiff's work attendance problems and pace of performance. Cf. Young v. Barnhart, 134 Fed. App'x 81, 83, 2005 WL 1140287, at *2 (7th Cir. 2005) (unpublished) ("The ALJ also failed to include in his hypothetical questions to the vocational expert any information on [plaintiff's] difficulties with social interaction, even though those difficulties were supported by medical evidence in the record. The hypothetical questions here, however, omitted significant documented limitations. The hypothetical questions presented by the ALJ, like the flawed RFC on which they were based, made short shrift of [plaintiff's] social and temperamental impairments."). Contrary to the Commissioner's arguments, other evidence that may exist in the record cannot compensate for a failure to follow proper procedure and cannot justify litigation to defend that failure. On remand, the Commissioner may well reach the same conclusions after presenting a vocational expert with a hypothetical scenario that addresses plaintiff's limitations more comprehensively. Even if that happens, though, a reasonable person would not feel satisfied that the Commissioner fulfilled his obligation to decide plaintiff's initial application based on all available information. Cf. Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) ("We have previously made it clear that, in meeting her burden of showing the claimant's ability to work, the Secretary may only rely upon the vocational expert's testimony if the questions posed by the ALJ include all of the ...

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