Opinion
Cause No. IP 02-0521-C H/L.
February 24, 2004
ENTRY ON PLAINTIFF'S ATTORNEY FEE PETITION
On May 8, 2003, the court reversed the Commissioner of Social Security's final decision denying the applications of plaintiff Carol Mikesell for disability insurance benefits under the Social Security Act. The court remanded the case to the Commissioner for proper and thorough evaluation of Ms. Mikesell's complaints of interstitial cystitis and anxiety disorders at step two of the five-step disability analysis. Ms. Mikesell then filed a timely petition for an award of attorney fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1). The Commissioner has opposed the petition for fees, arguing that her position was substantially justified within the meaning of the EAJA and that the fee requested is unreasonably high. As explained below, the fee petition is granted in the amount requested. This entry sets forth the court's relevant findings of fact and conclusions of law as required by Federal Rule of Civil Procedure 54(d)(2)(C).
Standards under the Equal Access to Justice Act
The EAJA provides in relevant part:
Except as otherwise specifically provided by statute, 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 . . ., 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). In general, to be eligible for a fee award under this provision, four elements must be satisfied: (1) the claimant was a "prevailing party"; (2) the Commissioner's position was not "substantially justified"; (3) no "special circumstances make an award unjust"; and (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), any fee application was submitted to the court within 30 days of final judgment in the action and was supported by an itemized application. See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 (1990). (The EAJA also uses financial means tests for award eligibility, see 28 U.S.C. § 2412(d)(2)(B), but those tests are unlikely to come into play for a person seeking disability benefits under the Social Security Act.)
Ms. Mikesell is a "prevailing party" for purposes of the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993) (remand under sentence four of 42 U.S.C. § 405(g) makes the plaintiff a prevailing party under the EAJA). The fee application was submitted to the court within the statutory time period, and the government has not identified any "special circumstances" that would make a fee award unjust. Because the other EAJA criteria were met, the decisive issue is whether the Commissioner's position was "substantially justified."
The Commissioner has the burden of proving that her position was substantially justified. Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996); Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The court will look to both the agency's pre-litigation conduct and its litigation position. Cummings v. Sullivan, 950 F.2d 492, 496 (7th Cir. 1991); 28 U.S.C. § 2412(d)(2)(D) (for purposes of fee award under EAJA, "`position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based"). To be "substantially justified," the Commissioner's position must have a reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Jackson, 94 F.3d at 278. It must be stronger than merely non-frivolous. Pierce, 487 U.S. at 565-66. On the other hand, the Commissioner's position need not have been correct. See Jackson, 94 F.3d at 278, quoting Pierce, 487 U.S. at 566 n. 2. "Substantially justified" does not mean "justified to a high degree"; the standard is satisfied if there is a "genuine dispute," or if reasonable persons could differ as to the appropriateness of the contested action. Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992), citing Pierce, 487 U.S. at 565.
The standard of review that applies to the merits of benefits decisions is deferential to the Commissioner. However, if the court has remanded the denial of benefits, that deferential standard of review does not automatically mean that the Commissioner's position must have been substantially justified for purposes of the EAJA. See, e.g., Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994). Under the EAJA, the test is whether the Commissioner had a rational ground for thinking that she had a rational ground for denying benefits. See id.
Discussion
I. Substantial JustificationThe Commissioner's position in this litigation was not substantially justified. Because the ALJ terminated the analysis at step two of the sequential benefits analysis, it is not at all clear whether Ms. Mikesell was actually disabled under the stringent standard that applies to claims under the Social Security Act. The basis for the remand in this case, though, was simple and straightforward.
Regarding interstitial cystitis, the ALJ found that there was no evidence of ongoing medical treatment of the condition. As this court explained in the entry on the merits, that finding was simply wrong as a matter of fact. Regarding anxiety and depression, the ALJ also overlooked some important evidence that tends to support Ms. Mikesell's claim. It is not clear why the ALJ missed key evidence on these points, but he did. When combined with Ms. Mikesell's testimony about the effects of her bladder condition and her anxiety and depression, and the relatively modest burden a claimant must meet to show an impairment is "severe" at step two, a remand was inevitable.
There is no basis for arguing harmless error, nor was this merely a technical failure to comply with a regulation or Social Security Ruling. This was not a close case on the merits of the remand decision, which distinguishes this case from Stein, 966 F.2d at 319 (finding that Secretary's position was substantially justified where case was remanded under "deliberately flexible" standard for failure to articulate reasoning sufficiently; "the level of articulation required is far from precise," allowing reasonable people to disagree).
The Commissioner has asserted that her position was substantially justified because the court did not actually order that benefits be awarded to Ms. Mikesell. The argument is not persuasive. Under the deferential standard of review that applies to the Commissioner's decision, court-ordered awards are rare, allowed only when the claimant can show that the only reasonable decision would be a finding of disability. E.g., Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993); accord, Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998). The Commissioner's argument effectively seeks to reverse one of the key holdings of Shalala v. Schaefer, 509 U.S. 292, 302 (1993), to the effect that a sentence-four remand under 42 U.S.C. § 405(g) makes the claimant a prevailing party for purposes of the EAJA, regardless of whether benefits are ultimately awarded on the remand. If the courts were to adopt the Commissioner's argument, they would create a presumption that the Commissioner's position was substantially justified in the vast majority of remanded cases, regardless of the relative strengths or weaknesses of the position in the particular case.
II. The Amount of a Reasonable Fee
The Commissioner also objects to the amount of plaintiff's fee request. The EAJA allows awards of reasonable fees. 28 U.S.C. § 2412(d)(2)(A). Plaintiff initially requested $4,557.75, and added another $649.00 to her request to cover her reply in support of her petition, for a total of $5,206.75. The Commissioner's objections are not persuasive.
First, the Commissioner objects to two time entries for time spent before the complaint was filed, but after administrative proceedings had concluded. The court expects attorneys to spend a reasonable amount of time evaluating a case before filing a complaint, and to confer with their clients before doing so.
Second, the Commissioner objects to the total of 31.4 attorney hours, pointing out that the same attorneys represented plaintiff during the administrative proceedings. The attorneys filed two briefs on the merits, and those briefs were solid pieces of work. In the court's experience with Social Security disability cases, attorneys for claimants too often do not do enough careful pre-complaint analysis and do not devote enough time focused on judicial review and the deferential standards that apply to it. Instead, in too many cases the court receives an undigested summary of medical records and a handful of conclusory and boilerplate arguments. In this case, though, plaintiff's attorneys did what they were supposed to do. They carefully evaluated the ALJ's opinion and presented clear and persuasive arguments that took into account the deferential standard for judicial review. Such well-prepared briefs, regardless of the outcome, help both the Commissioner and the court by focusing the issues so well. The court will not reduce the 31.4 hour request.
Conclusion
Because the Commissioner's position in this case was not substantially justified and the other requirements of the EAJA have been met, the court grants the petition in the sum of $5,206.75. A separate judgment shall be entered.
So ordered.