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Hogue v. Colvin

United States District Court, S.D. Alabama, Northern Division

August 12, 2014

CHRISTOPHER HOGUE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

KATHERINE P. NELSON, Magistrate Judge.

This matter is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule 54(d)(2)(A) of the Federal Rules of Civil Procedure, on the application by Plaintiff Christopher Hogue for an award of attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (the "EAJA") (Doc. 29), filed May 30, 2014, and the Commissioner of Social Security's objection to his application (Doc. 31), filed July 7, 2014. Upon consideration of all pertinent materials contained in the file, it is ORDERED that the application is DENIED because the position of the Commissioner in this litigation, to defend her decision denying Hogue benefits, "was substantially justified...." 28 U.S.C. § 2412(d)(1)(A).

I. Substantial Justification Standard

EAJA requires a district court to "award to a prevailing party... 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..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Id. (emphasis added).

While "[s]ubstantially justified' is one of the myriad phrases in the law that has no precise or fixed definition[, t]he Supreme Court has said that it means justified in substance or in the main.'" Grieves v. Astrue, 600 F.Supp.2d 995, 999 (N.D. Ill. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see id. ("A position that is substantially justified' must have a reasonable basis both in law and in fact.'" (quoting Pierce, 487 U.S. at 565)); accord Monroe v. Commissioner of Soc. Sec. Admin., ___ Fed.App'x ___, 2014 WL 2809139, at *1 (11th Cir. June 23, 2014) (per curiam) (citing Commissioner, I.N.S. v. Jean, 496 U.S. 154, 155 (1990)); cf. Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (a position is substantially justified if a "reasonable person could believe the position was correct").

EAJA decisions necessarily involve exercises of discretion because of the sheer impracticability of formulating a rule of decision in such cases. Questions that arise under the Act, like many that arise in litigation generally, are not amenable to regulation by rule because they involve multifarious, fleeting, special, narrow facts that utterly resist generalization-at least, for the time being.

Grieves, 600 F.Supp.2d at 999 (internal citations and quotation marks omitted and other modifications to original).

It is also essential to recall that "a position can be justified even though it is not correct, " Pierce, 487 U.S. at 566, n.2, and "[the government] could take a position that is substantially justified, yet lose [on the merits]." Id. at 569. Analysis of questions of substantial justification must take into account the government's position in the underlying action and the litigation posture it took while defending the validity of that action in court. 28 U.S.C. § 2412(d)(2)(D). But, substantial justification should not be confused with the "substantial evidence" standard that applies to a court's initial review of the case. Indeed, the Supreme Court has cautioned that consideration of a fee petition "should not result in a second major litigation.'" Pierce, 487 U.S. at 563. Thus, an EAJA petition requires the court to revisit the legal and factual circumstances of this case from a different perspective-the elusive standard of substantial justification-than it did in reviewing the record on the initial go-round to determine whether there was substantial evidence to support the conclusion.

Id. at 1000 (internal citations modified and some omitted).[1]

The Commissioner must establish that her position was substantially justified. See Stratton v. Bowen, 827 F.2d 1447, 1450 (11th Cir. 1987) ("The government bears the burden of showing that its position was substantially justified." (quoted in Monroe, 2014 WL 2809139, at *1)).

II. Analysis

Here, remand was required because, although Hogue carried his burden to demonstrate he presumptively meets Listing 12.05(C), entitling him to the rebuttable presumption of disability, the ALJ failed to explicitly address that listing at the third step of the sequential evaluation. See Hogue v. Colvin, Civil Action No. 2:13-00375-N, 2014 WL 1744759, at *4-5 (S.D. Ala. Apr. 30, 2014); see also Hartman v. Colvin, No. CA 13-00005-C, 2014 WL 3058550, at *5 (S.D. Ala. July 7, 2014) ("The ALJ's failure to acknowledge the applicability of Listing 12.05(C) and afford the Plaintiff the rebuttable presumption of deficits in adaptive functioning was clear error because the Plaintiff met both of the requirements in paragraph C." (citing Hogue; Frank v. Astrue, No. CA 2:11-00215-C, 2011 WL 6111692 (S.D. Ala. Dec. 8 2011))). At the third step of the sequential evaluation, the ALJ instead stated, "Listing 12.02, rather than 12.05 was used because while there is some evidence of intellectual limitations, there is evidence of adapting functioning not consistent with use of 12.05." (Doc. 14, tr. ("R.") at 16.)

[T]he failure of the ALJ here to address Listing 12.05(C) head on at the third step and, instead, attempt to address Dr. Blanton's opinion-the evidence signaling the need to consider that listing-in the context of her step-four RFC determination is confusing and makes her decision difficult for a reviewing court to follow. The ALJ should have discussed the IQ testing as well as the evidence of adaptive functioning she contends belies Hogue's IQ score at the third step of the sequential evaluation. She instead appears to use Hogue's adaptive skills (as well as his deficits, as noted in Dr. Blanton's opinion) at the fourth step, to shape the RFC. This failure to apply "the correct ...

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