United States District Court, S.D. Indiana, New Albany Division
DUSTY D. DAVIS, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER ON PLAINTIFF'S PETITION FOR ATTORNEYS'
Baker United States Magistrate Judge
issue is Plaintiff Dusty Davis's petition for $13, 300 in
attorneys' fees under the Equal Access to Justice Act for
prevailing in a Social Security disability appeal.
[Filing No. 30.] The Commissioner opposes the
motion, arguing her position was substantially justified, and
that, if fees are awarded, they should be paid to Davis-not
directly to his attorney. In light of the fact that the ALJ
failed to provide any analysis in support of his step three
equivalence determination, the Commissioner's position
was not substantially justified and the Court grants
Davis's petition for his attorneys' fees. [Filing
No. 30.] The Commissioner shall have 70 days to
investigate whether Davis has outstanding debt to the
government, after which the Commissioner is to pay the fee
award directly to Davis's counsel.
requires the Court to award timely-requested attorneys'
fees to an eligible, prevailing plaintiff when the
government's position was not “substantially
justified” and no “special circumstances make an
award unjust.” See28 U.S.C. §
2412(d)(1)(A)-(B); see Conrad v. Barnhart,
434 F.3d 987, 989 (7th Cir. 2006). Davis is an eligible,
prevailing party who timely requested attorneys' fees and
no special circumstances are alleged. The only question then,
is whether the Commissioner's position was substantially
Commissioner has the burden to prove her position was
substantially justified. Golembiewski v. Barnhart,
382 F.3d 721, 724 (7th Cir. 2004). The Commissioner can meet
this burden by showing her position had “reasonable
factual and legal bases, ” as well as “a
reasonable connection between the facts and her legal
theory.” Cunningham v. Barnhart, 440 F.3d 862,
864 (7th Cir. 2006). And she must show this reasonable basis
existed before and during the litigation.
Id.However, that does not mean prevailing parties
automatically recover attorneys' fees. See
Potdar v. Holder, 585 F.3d 317, 319 (7th Cir. 2009).
After all, a position may be substantially justified even if
the ALJ's decision “turn[ed] out to be completely
wrong” or “offer[ed] merely a cursory and
inadequate analysis of an important point.” Bassett
v. Astrue, 641 F.3d 857, 859-60 (7th Cir. 2011). For
example, an ALJ's failure to connect all the dots may be
erroneous and require remand but still be a reasonable
interpretation of the facts and law. Id. Rather,
“it typically takes something more egregious than just
a run-of-the-mill error in articulation to make the
commissioner's point unjustified-something like the
ALJ's ignoring or mischaracterizing a significant body of
evidence, or the commissioner's defending the ALJ's
opinion on a forbidden basis.” Id. at 860. In
the end, the question of substantial justification is left to
the discretion of the district court. Id. at 859.
Commissioner argues the ALJ's error was merely in failing
to properly articulate the support for his conclusion. She
contends this case is one where “[t]he medical evidence
supports the ALJ's decision, although he did fail to
adequately explain the connection.” [Filing No. 32,
at ECF p. 3 (quoting Cunningham, 440 F.3d at
865).] The Commissioner then points to record facts that
could have supported the ALJ's conclusion had he pointed
to them. However, the ALJ's error was more egregious than
the Commissioner suggests. But for a (likely boilerplate)
heading that included an equivalence conclusion, the
ALJ's decision entirely omitted any discussion of medical
equivalence. As the Court noted, “Without any
discussion of equivalency, the Court cannot know if the ALJ
forgot to mention his analysis or forgot to do an analysis
altogether. While the Court does not assume the worst, it
cannot assume the best either.” [Filing No. 29, at
ECF p. 3.] Further, there was no discussion of the
conflicting evidence. This cannot be brushed aside as poor,
yet reasonable, articulation.
Commissioner's attempt to rectify the omission by noting
that ALJs' decisions are to be read as a whole fails. She
argues that she “reasonably relied on case law holding
that an ALJ's discussion of medical opinion evidence
later in his decision is sufficient to articulate his step
three rationale.” [Filing No. 32, at ECF p.
4.] Inexplicably, the Commissioner then cites to case
law on which she did not rely in her memorandum in
support of the Commissioner's decision.
[CompareFiling No. 22, at ECF p. 10 with Filing
No. 32, at ECF p. 4.]
these additional cases do not support her position. In
O'Neal v. Colvin, No. 1:15-cv-0318-DKL-WTL, 2016
WL 1056057, at *6 n.1 (S.D. Ind. Mar. 17, 2016), the ALJ
failed to refer to the reviewing psychologists' opinions
within his step three analysis, but adopted the opinions in
his RFC analysis. In Covington v. Colvin, No.
1:13-cv-00363-SEB-DKL, 2014 WL 4961153, at *6 n.8 (S.D. Ind.
Sept. 29, 2014), the ALJ discussed the credibility of medical
sources in his RFC analysis rather than his step three
analysis. Thus, those cases stand for the proposition that it
is not reversible error for pieces of the ALJ's step
three analysis to have migrated to the RFC section. Here, the
ALJ adopted one of Dr. Fischer's unrelated opinions in
his RFC analysis, but never addressed his opinion regarding
equivalence. And rather than insert a credibility analysis
elsewhere in the decision, the ALJ entirely omitted any
equivalence discussion. This is not an instance where part of
the ALJ's equivalence analysis better fit within the
narrative form of the decision by being inserted in another
section-it was not there at all.
the payment of fees, the Commissioner does not object to the
amount of fees, but rather to whom they should be paid. The
Commissioner argues that, regardless of any assignment, EAJA
fees are subject to administrative offset if Davis has any
outstanding debt to the federal government, so the fees
should be paid directly to Davis. Davis requests that the
Court give the Commissioner 70 days to investigate whether a
debt is owed, then pay Davis's attorney directly.
Davis's proposal is reasonable, and this Court has
employed it before. E.g. Staley v. Berryhill, No.
4:15-cv-00178-TAB-RLY, 2017 WL 2181151, at *2-3 (S.D. Ind.
May 18, 2017); Orr v. Astrue, No.
1:11-cv-01471-TWP-MJD, 2013 WL 1840471, at *3 (S.D. Ind. May
the Court grants Davis's petition for attorneys'
fees. [Filing No. 30.] Davis's counsel is
awarded $13, 300 in attorneys' fees, to be paid
directly to counsel within 70 days. If during this time, the
Commissioner discovers that Davis owes an outstanding debt to
the government, the Commissioner must file a statement with
the Court, along with supporting evidence of the debt, that
the Commissioner will exercise the right to offset.
 The Commissioner did refer to the
cases in her Rule 59(e) motion for reconsideration, which was
denied as a re-hash of arguments the Court already
considered. [Filing No. 29, at ECF p. 1.] Further,
the rulings the Commissioner cites were issued well before
the Commissioner filed her memorandum in support on May 15,
2017. O'Neal v. Colvin, No.
1:15-cv-0318-DKL-WTL, 2016 WL 1056057 (S.D. Ind. Mar. 17,
2016); Covington v. Colvin, No.
1:13-cv-00363-SEB-DKL, 2014 WL 4961153 (S.D. Ind. Sept. 29,
 Davis's petition originally
requested $12, 692 [Filing No. 31, at ECF p. 13],
but the Commissioner's challenge resulted in an
additional 3.2 hours, amounting to an additional $608.00 in
fees. [Filing No. 33, at ECF p. 9.] The time spent
preparing the reply brief is ...