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MacEk v. Colvin

United States District Court, N.D. Indiana, Hammond Division

February 26, 2014

MARK G. MACEK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


ANDREW P. RODOVICH, Magistrate Judge.

This matter is before the court on the Plaintiff's Motion for Attorney's Fees Under the Equal Access to Justice Act [DE 26] filed on December 20, 2013. For the following reasons, the motion is DENIED.


The plaintiff, Mark G. Macek, filed for Disability Insurance Benefits on July 24, 2009, alleging a disability onset date of November 3, 2008. His claim initially was denied on December 4, 2009, and again denied upon reconsideration. Macek requested a hearing before an Administrative Law Judge ("ALJ"), and a hearing was held before ALJ Kathleen Mucerino. The ALJ issued a decision denying benefits, and that decision was upheld by the Appeals Council. Macek filed his complaint with this court on May 16, 2012. On September 27, 2013, the court remanded the decision for further proceedings.

In the Opinion and Order, the court explained that the ALJ relied on state agency reviewing physician, Dr.Magnus', report when she determined that Macek had moderate limitations in concentration, persistence, or pace, and that Macek could perform one or two step routine tasks. Dr. Magnus also concluded that Macek had a moderate limitation in completing a normal workday or workweek without psychological interruptions. However, the ALJ did not adopt this limitation or explain why she rejected it.

The court also remanded Macek's claim because the ALJ limited Macek to one- to twostep tasks, but the VE identified jobs with a Level 2 reasoning. The Dictionary of Occupational Titles defined level one jobs as involving one- to two- step tasks, so the court determined that the Level 2 jobs the VE identified conflicted with the ALJ's RFC finding.

The ALJ also rejected the opinion of Macek's treating psychiatrist in part because it was not well supported. The ALJ noted on multiple occasions that Dr. Ghandi did not provide his treatment notes. The court determined that the ALJ could not accurately determine whether Dr. Ghandi's opinion was supported without consideration of his treatment notes, and that the ALJ should have requested the information.

The court concluded that the ALJ's overall decision was well-supported and explained, but remanded for the reasons explained above. Macek now moves for attorney's fees. The Commissioner objects, arguing that her position was substantially justified.


The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees incurred in litigation against the Commissioner of Social Security "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 Commissioner, I.N.S. v. Jean, 496 U.S. 154, 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990 ); Golembiewski v. Barnhart, 382 F.3d 721, 723-34 (7th Cir. 2004). A fee application must be filed within thirty days of a court's final judgment and must satisfy the following requirements: (1) a showing that the applicant is a "prevailing party;" (2) a showing that the application is "eligible to receive an award;" (3) a showing of "the amount sought, including an itemized statement from any attorney or expert witness representing or appearing in[sic] behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed;" and (4) an "alleg[ation] that the position of the United States was not substantially justified." 28 U.S.C. § 2412(d)(1)(B); see also Scarborough v. Principi, 541 U.S. 401, 405, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004); United States v. Hallmark Constr. Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (setting forth the elements of § 2412(d)(1)(A) & (B))).

Considering whether the Commissioner was substantially justified, the court is to analyze the "position of the United States, " which refers to the conduct of the Commissioner throughout the civil action, including pre-litigation conduct. 28 U.S.C. § 2412(d)(2)(D); Golembiewski, 382 F.3d at 724; Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The trial court must consider whether the Commissioner's pre- and post-litigation "position was grounded in: (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced." Golembiewski, 382 F.3d at 724 (citing Hallmark Constr., 200 F.3d at 1080). A court should evaluate the factual and legal support for the Commissioner's position throughout the entire proceeding. See Hallmark Constr., 200 F.3d at 1080. A court need only make one determination regarding the Commissioner's conduct during the entire civil action. Jean, 496 U.S. at 159, 110 S.Ct. at 2319; Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996). "[F]ees may be awarded in cases where the government's prelitigation conduct was not substantially justified even though its litigation position may have been substantially justified and vice versa." Marcus, 17 F.3d at 1036. The court must undertake a global analysis of the government's position because whether that position was substantially justified will rarely be decided by a single issue. See Hallmark Constr., 200 F.3d at 1080.

Although the EAJA does not define "substantial justification, " the Supreme Court has defined the term to mean "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see also Golembiewski, 382 F.3d at 724. Expanding on this definition, the Seventh Circuit has explained, "Substantially justified' does not mean justified to a high degree, ' but rather has been said to be satisfied if there is a genuine dispute, ' or if reasonable people 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, 108 S.Ct. at 2550); Church v. Astrue, 496 F.Supp.2d 964, 966 (N.D. Ind. 2007) ("[I]f an agency had a rational ground for thinking it had a rational ground for its action, " the Commissioner's position is substantially justified.'" (citing Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994)). When conducting this analysis, the court should consider whether the ALJ's decision was supported by evidence of record and whether the Commissioner's position was supported by applicable law. Church, 496 F.Supp.2d at 966 (citing Cunningham v. Barnhart, 440 F.3d 862, 863 (7th Cir. 2006); Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994)). The substantial justification standard is different than the substantial evidence standard, which is used to evaluate the merits of a claimant's request for remand. See Pierce, 487 U.S. at 568-69, 108 S.Ct. at 2552. Thus, a loss on the merits does not automatically constitute a lack of substantial justification. See Pierce, 487 U.S. at 569, 108 S.Ct. at 2252. The Commissioner bears the burden of proof in showing that the government's litigation position was substantially justified. See Pierce, 487 U.S. at 565, 108 S.Ct. at 2561; Golembiewski, 382 F.3d at 724.

First, the Commissioner argues that she was justified to argue that the level 2 jobs identified by the VE were not inconsistent with the one-to-two step tasks the ALJ limited Macek to performing. The court rejected this argument because the Dictionary of Occupational Titles states that jobs that involve one-to-two step tasks have a reasoning level of one. Dictionary of Occupational Titles, Appendix C-Components of the Definitional Trailer, 1991 WL 688702. The Commissioner argues that she was substantially justified because in Terry v. Astrue, 580 F.3d 471, 478 (7th Cir. 2009), the Seventh Circuit found that there was no apparent conflict between the ALJ limiting the claimant to simple work and the jobs identified by the VE that required a reasoning level of 3. However, as the court explained, the conflict was more apparent than in Terry because the wording of the ALJ's RFC was in direct conflict with the language used in the DOT.

More convincingly, the Commissioner points out that this court has determined that the conflict between a one- to two- step task and jobs with a reasoning level of 2 was not so obvious that the ALJ should have picked up on it without the assistance of counsel. Pomilia v. Astrue, 2012 WL 691628, *20 (N.D. Ind. March 2, 2012). This shows that reasonable minds could differ on whether this error was deserving of remand on this issue and that cases within this district supported the ...

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