United States District Court, E.D. Pennsylvania
MEMORANDUM OPINION AND ORDER REGARDING ATTORNEY'S
FEES AND COSTS
RICHARD A. LLORET U.S. Magistrate Judge.
Entitlement to Fees and Costs Under EAJA.
Ransom-Freeman has filed a motion requesting attorney's
fees and costs pursuant to the Equal Access to Justice Act
(“EAJA”), codified at 28 United States Code,
Section 2412(d). Ms. Freeman filed an appeal of the denial of
her claim for disability pursuant to 42 U.S.C. §§
405(g), seeking review of the final decision of the Acting
Commissioner of Social Security denying her application for
Social Security Disability Insurance (“SSDIB”)
under Titles II and XVI of the Social Security Act. 42 U.S.C.
§§ 401 et seq. and 1381 et seq.
On November 30, 2017, this Court filed a Memorandum Opinion
remanding this case to the Administrative Law Judge
(“ALJ”) with instructions to review the case in
light of this Court's findings.
ruling included my finding that the ALJ failed to address
significant evidence in the record that contradicted the
evidence upon which the ALJ based his findings, and a finding
that the ALJ mischaracterized portions of the record, and
used those mischaracterizations to support his finding.
Because of those errors, I was unable to conduct a meaningful
review of the ALJ's opinion. I also found that these
errors were not harmless: there was significant evidence in
the record of the “paragraph B” criteria, which
may permit a reasonable factfinder to conclude that Freeman
meets the requirements of Listing 12.04. Alternatively, I
found that significant evidence in the record may permit a
factfinder to determine that Freeman is disabled, at step
contends that these findings mean that she is the prevailing
party in this matter, and allow her to collect attorney's
fees and costs pursuant to EAJA. Plaintiff claims costs in
the amount of $504.75, and a total of 84.1 hours of attorney
time, at a rate of $168.62 per hour.
Commissioner responds that no fees should be awarded pursuant
to EAJA, because the government's position was
“substantially justified.” Dkt. No. 28, pp. 1-15.
is entitled to “fees and other expenses . . . incurred
by that party. . . unless the court finds that the position
of the United States was substantially justified or that
special circumstances make an award unjust.”
Williams v. Astrue, 600 F.3d 299, 301-02 (3d Cir.
2009) (quoting 28 U.S.C. § 2412(d)(1)(A)).
“Substantially justified, ” under EAJA, means
“justified in substance or in the main-that is,
justified to a degree that could satisfy a reasonable
person.” Id. at 301-02 (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). The government
must demonstrate “(1) a reasonable basis in truth for
the facts alleged; (2) a reasonable basis in law for the
theory it propounded; and (3) a reasonable connection between
the facts alleged and the legal theory advanced.”
Id. at 302 (quoting Morgan v. Perry, 142
F.3d 670, 684 (3d Cir. 1998) (citing Hanover Potato
Products, Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir.
The EAJA is not a “loser pays” statute. Thus, a
court cannot assume that the government's position was
not substantially justified simply because the government
lost on the merits. “[T]he inquiry into reasonableness
for EAJA purposes may not be collapsed into [the] antecedent
evaluation of the merits, for EAJA sets forth a distinct
legal standard.” Cooper v. United States Railroad
Retirement Board, 24 F.3d 1414, 1416 (D.C.Cir.1994).
Morgan, 142 F.3d at 685.
Williams, the court of appeals upheld the district
court's denial of attorney's fees, where the basis of
remand was a single “inconsequential” legal error
that would likely be remedied on remand without changing the
ultimate outcome. Williams, 600 F.3d at 302. By
contrast, in this case the ALJ's opinion was
“riddled with errors.” Xayaseng v.
Barnhart, 2006 WL 891177, at *1 (E.D.Pa. 2006)
(rejecting the argument that the Commissioner's position
was substantially justified). It seems unlikely that,
properly considered, this case would result in a denial of
benefits. Perhaps the best indicator of whether the
Commissioner's position is substantially justified is the
decision and rationale on the merits. See Bryan v.
Commissioner of Social Sec., 478 Fed.Appx. 747, 750,
2012 WL 1354517, at *2 (3d Cir. 2012) (“The most
powerful indicator of the reasonableness of an ultimately
rejected position is a decision on the merits and the
rationale which supports that decision.”) (quoting
Friends of the Boundary Waters Wilderness v. Thomas,
53 F.3d 881, 885 (8th Cir.1995)).
Memorandum explains in detail, the ALJ made numerous,
serious, prejudicial errors in a case where the evidence
appears to warrant a finding that plaintiff meets a listing.
This was not a case where the legal standards were unclear or
rarely encountered, or the adverse evidence slender or murky.
This was a case where the ALJ arrived at a result without
complying with well-known legal standards and without
considering substantial, often overwhelming evidence
contradicting his conclusions.
Commissioner's position fails to satisfy all three
elements identified in Williams:
a reasonable basis in truth for the facts alleged; (2) a
reasonable basis in law for the theory it propounded; and
(3) a reasonable connection between the facts alleged and
the legal theory advanced.” Williams, 600
F.3d at 302. The errors culminated in an entirely
unsatisfactory hearing. Some of the other errors identified
in the Memorandum include:
• failing to consider the Claimant's actual
history with medications (Dkt. No. 22 at p. 37)
• failing to determine if medication actually controlled
Claimant's symptoms (Id. at 37)
• failing to determine whether “good
reasons” justified Claimant's periodic medication
lapses (Id. at 37)
• failing to deal with substantial evidence that Freeman
meets 3 of the 4 “B” criteria under Listing
§ 12.04(B) (1), (2) and (3) (Id. at 47)
• “cherry-picking” GAF scores and insisting
that good GAF scores were attained without psychiatric
treatment (Id. at 49-50)
• Concluding that Freeman is non-compliant with
treatment without considering other explanations, as required
in the Social Security Administration's regulations
(Id. at 50-51)
light of these fundamental failures, the Commissioner's
position was not substantially justified. The Commissioner
repeatedly relies upon the Third Circuit's opinion in
Johnson v. Comm'r. of Soc. Sec, 529 F.3d 198,
203-04 (3d Cir. 2008) for the proposition that their position
was substantially justified because an ALJ is not required to
discuss every piece of evidence in the record. Dkt. No. 28,
pp. 6, 12. True enough, but where the ALJ wholesale ignores
evidence that contradicts his findings, and those findings
themselves are based, at least in part, on a
mischaracterization of the evidence upon which the ALJ does
rely, the Commissioner cannot merely parse snippets of the
record in an effort to stand up an unsupported decision. The
legal requirements that the ALJ base his or her decision on
substantial evidence (not mischaracterizations of evidence),
consider contradictory evidence, and do both in such a way
that a court can exercise meaningful review, are basic and
well known. This Court's Memorandum described the
opinion's shortcomings in detail:
findings undergird the ALJ's opinion: that Freeman failed
to attend psychotherapy and willfully failed to comply with
her medication regime. The ALJ made the following conclusory
statement just prior to concluding that his RFC assessment is
supported by medical evidence, and therefore Claimant is