Johnson v. Astrue

• Decision Date: 23 September 2011
• Docket Number: CIV 10-4052-RAL
• Parties: SIDNEY JOHNSON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of South Dakota

SIDNEY JOHNSON, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

CIV 10-4052-RAL

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

Dated September 23, 2011

OPINION AND ORDER

GRANTING MOTION FOR

ATTORNEY FEES AND COSTS

I. INTRODUCTION

Plaintiff Sidney Johnson has filed a motion for attorney's fees (Doe. 20) under the Equal Access to Justice Act ("EAJA") following this Court's Judgment and Order of Remand (Doc. 18), which vacated the decision of the Commissioner of Social Security ("the Commissioner") denying Johnson's application for Social Security Disability Insurance ("SSDI") benefits. Johnson seeks $7,894.03¹ in attorney's fees, including $446.83 in sales tax, and costs in the amount of $45.24. Johnson assigned any court-awarded EAJA attorney fees to his attorney when he hired his attorney. (Doc. 20-4, Fee Agreement; see also Doc. 20-5, Plaintiff's Affidavit and Assignment of EAJA fees). After the Commissioner opposed the motion for attorney's fees, Johnson filed a supplemental motion for award of attorney's fees (Doc. 25) seeking an additional $791.70 in attorney's fees, including $47.50 in sales tax, for work related to Johnson's reply brief.

The Commissioner opposed awarding fees to Johnson's attorney for three reasons. First, the Commissioner asserted that Johnson's motion was premature. Second, the Commissioner argued that the Commissioner's denial of benefits was substantially justified, thereby preventing award of a fee. Third, the Commissioner maintained that, if attorney's fees are to be awarded, those fees are to be paid directly to Johnson rather than his attorney. For the reasons explained below, this Court grants Johnson's motion and supplemental motion.

II. FACTUAL BACKGROUND²

Johnson was born December 14, 1960, and completed high school. (AR 35).³ He has autism, an anxiety disorder, and a depressive disorder. He was a janitor from 1984 until his termination in 2002 at the age of 41. (AR 40-41). Following termination from that position, Johnson worked part-time at a Hy-Vee grocery store and a church. (AR 37-38). Johnson received both wage subsidies and special accommodations from the church. Before the Administrative Law Judge ("ALJ"), Johnson reported leg length discrepancy, back pain, arthritis in his feet, knee discomfort, autism, and constant shoulder pain that has been helped somewhat by physical therapy and electric shock therapy. (AR 41-45),

Dr. William Dendinger, M.D. is Johnson's primary care physician. Dr. Dendinger has treated Johnson for complaints of periodic pain in his arms and legs as well as back discomfort. From 2005 to 2007, Dr. Dendinger, as well as Dr. H. Lars Aanning, treated Johnson for a hernia. (AR 268-71, 292). In 2007, Dr. Dendinger prescribed medicine for Johnson's depression, and in2009, noted that Johnson's autism was a disabling factor. (AR 382, 392).

Johnson saw Dr. Scott Shindler, a podiatrist, due to pain in both feet. (AR 374-75). Dr. Shindler ultimately determined that Johnson should be limited to 15 to 20 minutes standing at one time and to a total of two hours standing in any work day. (AR 376-77).

Johnson also saw Dr. Galen Van Kiev, a clinical psychologist. (AR 254). Dr. Van Kley noted Johnson's intellectual limitations and emotional struggles and believed that Johnson might have a disability based on the Department of Rehabilitative Services criteria. (AR 258). Johnson met with Brittany Schmidt, the Director of the Autism Spectrum Disorders Program Clinic at the Sanford School of Medicine Center for Disabilities, in 2007. (AR 349-52). Schmidt determined that Johnson met the diagnostic criteria for autism and that Johnson had marked restrictions of activities of daily living and maintaining social functioning. (AR 351, 379).

State agency mental health experts twice assessed Johnson's mental limitations. In 2007. Dr. Jerry Buckoski found that despite moderate limitations, Johnson has the ability to work as shown by his past performance as a janitor. (AR 311-13). In late 2007, after the diagnosis of autism was added to Johnson's file, Dr. Stephanie Fuller found moderate limitations and concluded that Johnson was mentally capable of substantial gainful work activity. (AR 368-70). State agency physicians completed two assessments of Johnson's physical limitations and determined him to have no physical limitations. (AR 316-23, 373).

The ALJ applied the five-step sequential process mandated under 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ determined that Johnson had engaged in substantial gainful activity ("SGA"). (AR 19). At step two, the ALJ found that Johnson had an organic mental disorder, autism, a depressive disorder, and an anxiety disorder. (AR 20). The ALJfound that these impairments were severe. (AR 20). The ALJ found that Johnson's leg and shoulder pain were not severe. (AR 20). The ALJ concluded that Johnson's mental impairments did not meet the medical criteria for listings of Organic Mental Disorders or Autism Disorder. (AR 20). The ALJ found that Johnson could perform other jobs in significant numbers in the national economy. (AR 26-27). In ultimately denying Johnson disability benefits, the ALJ, referring to the SGA finding, stated:

[T]his is the major basis for this denial, claimant performed substantial gainful activity in both 2004 and 2007. This ability, as well as the earnings generated in 2003, 2005, 2006, and into 2008 clearly reflects a capacity for full-time work within the parameters of the mental residual function capacity noted above.

(AR 25).

III. DISCUSSION

A. Whether the Motion for Attorney's Fees is Premature

The Commissioner asserted that the motion for attorney's fees is premature. Under 28 U.S.C. § 2412(d)(1)(B), "[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses." Chapter 28 U.S.C. § 2412(d)(2)(G) defines "final judgment" to mean "a judgment that is final and not appealable." Under 28 USC § 2107(b), the government has sixty days to file an appeal after the decision is issued. In this case, judgment entered on March 30, 2011, and would have become final and non-appealable sixty days later. The motion for attorney's fees was filed on April 15, 2011.

When a motion for attorney's fees is filed before the judgment is final for the purpose of the EAJA, the appropriate course of action is for the district court "to refrain from passing on thequestion of attorney fees until the litigation is final for the purposes of the EAJA." Harmon v. United States, 101 F.3d 574, 587 (8th Cir. 1996). Because the appeal deadline now has passed and the Commissioner has not appealed, Johnson's motion no longer is premature.

B. Whether The Government's Position Was Substantially Justified

The Commissioner's argument that the denial of SSDI benefits to Johnson was "substantially justified" deserves greater discussion. Under the Equal Access to Justice Act, the prevailing party in a proceeding for judicial review of federal agency action is entitled to legal fees and costs "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); see also Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005). In this context, "substantially justified" means "justified to a degree that could satisfy a reasonable person" or having a "reasonable basis in law and fact." Koss v. Sullivan, 982 F.2d 1226, 1229 (8th Cir. 1993) (quoting Pierce v. Underwood, 487 U.S. 552, 565(1988)). The standard is whether the Commissioner's position is well-founded in law and fact and "solid though not necessarily correct." Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003) (quoting Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995V); see also Goad, 398 F.3d at 1025 ("A position enjoys substantial justification if it has a clearly reasonable basis in law and fact.") (citing Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1997)). Thus, the Government's position in "denying benefits can be substantially justified even if the denial is unsupported by substantial evidence on the record as a whole." Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir. 1991) The Government bears the burden of "proving that both [its] pre-litigation conduct, including the ALJ's decision itself, and [its] litigation position were substantially justified."Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 20091; see also Lauer, 321 F.3d at 764 ("The Secretary bears the burden of proving the denial of benefits was substantially justified.") (quoting Welter, 941 F.2d at 676).

This case presents a close call on whether the Commissioner has met his burden to show that his position was "substantially justified." A careful review of the record reveals that the ALJ's errors, when considered in combination, justify an award of attorney's fees.

An ALJ's failure to follow agency regulations or circuit precedent can support a finding that the Commissioner was not "substantially justified" in opposing a party's claim for Social Security benefits. See Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (government's position was not substantially justified where ALJ "violated clear and long judicial precedent and violated the Commissioner's own Ruling and Regulations."); Koss, 982 F.2d at 1229 (awarding attorney's fees where ALJ "failed to follow established precedent by failing to pursue the psychological aspect of [plaintiff's] disability, obtain the medical records of a treating physician, or analyze [plaintiff's] claim of pain under Polaski."); Trundle v. Bowen, 830 F.2d 807, 810-11 (8th Cir. 1987) (concluding that the Government's position was not substantially justified based, in part, on the ALJ's failure to follow Polaski guidelines); Cornelia v. Schweiker, 728 F.2d 978, 985 (8th Cir. 1984) ("It was not...