RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Howard v. Comm’r of Social Security No. 02-2058
ELECTRONIC CITATION: 2004 FED App. 0221P (6th Cir.)
File Name: 04a0221p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Lewis M. Seward, SEWARD, TALLY &
FOR THE SIXTH CIRCUIT PIGGOTT, Bay City, Michigan, for Appellant. Edward P.
_________________ Studzinski, SOCIAL SECURITY ADMINISTRATION,
Chicago, Illinois, for Appellee. ON BRIEF: Lewis M.
JIMMIE L. HOWARD , X Seward, SEWARD, TALLY & PIGGOTT, Bay City,
Plaintiff-Appellant, - Michigan, for Appellant. Edward P. Studzinski, SOCIAL
- SECURITY ADMINISTRATION, Chicago, Illinois, for
- No. 02-2058 Appellee.
v. -
> _________________
,
JO ANNE B. BARNHART , - OPINION
COMMISSIONER OF SOCIAL - _________________
SECURITY, -
Defendant-Appellee. - BOYCE F. MARTIN, JR., Circuit Judge. Jimmie Howard
- appeals from the district court’s denial of his request for
N attorney fees under the Equal Access to Justice Act, 28 U.S.C.
Appeal from the United States District Court § 2412, in this social security benefits action. Because we
for the Eastern District of Michigan at Detroit. conclude that the district court erred in finding that the
No. 99-70098—Robert H. Cleland, District Judge. Commissioner of Social Security’s position was
“substantially justified,” we REVERSE and REMAND for a
Argued: January 29, 2004 determination of whether the fees requested were reasonable
under the Act.
Decided and Filed: July 12, 2004
I.
Before: MARTIN and MOORE, Circuit Judges; WEBER, Howard applied for supplemental income disability benefits
Senior District Judge.* in March 1995 under Title II of the Social Security Act,
claiming that she became disabled as of December 1994 as a
result of back pain. Upon review of the evidence, the
administrative law judge denied Howard’s application for
disability benefits. Specifically, the administrative law judge
discredited much of Howard’s subjective assessments of her
condition as well as the assessments of one of her treating
*
The Hon orable H erman J. W eber, Senior United States District physicians, Dr. Levin, finding his assessments “grossly
Judge for the Southern District of Ohio, sitting by designation.
1
No. 02-2058 Howard v. Comm’r of Social Security 3 4 Howard v. Comm’r of Social Security No. 02-2058
restrictive” and based on “scanty factors.” The administrative substantial evidence. Howard v. Comm’r of Soc. Sec., 276
law judge then posed two hypothetical questions to the F.3d 235, 241-42 (6th Cir. 2002).
vocational expert. In the first, he asked whether any jobs
existed in the region for a person having the limitations as Specifically, we concluded that the administrative law
described by Howard. The vocational expert testified that judge’s formulation of Howard’s residual functional capacity,
there were not any jobs available for a person having the did not accurately portray Howard’s abilities and that,
limitations that Howard described. Because the because the administrative law judge’s decision relied upon
administrative law judge found Howard’s subjective the erroneously constructed residual functional capacity, his
assessments less than credible, he posed a second hypothetical decision was unsupported by substantial evidence. Id. at 241.
question to the vocational expert. The hypothetical was We explained that the administrative law judge should have
reformulated to include only those limitations that the accorded Dr. Levin’s opinions and diagnoses complete
administrative law judge found were substantiated by the deference because they were–contrary to the administrative
medical and testimonial evidence. law judge’s finding–supported by clinical and laboratory
findings and were not contradicted by any other medical
Given the new limitations, the vocational expert testified opinion. Id. at 240. Moreover, we noted that the
that there were a number of jobs available for a person with administrative law judge’s hypothetical question “fail[ed] to
the described limitations. Thus, the administrative law judge, describe accurately Howard’s physical and mental
applying the sequential review process, found that Howard impairments; a defect which, as we have stated, is fatal to the
was not disabled because she could perform a significant [vocational expert’s] testimony and the [administrative law
number of jobs despite her impairments. Although the judge’s] reliance upon it.”1 Id. at 241. In essence, we
administrative law judge found that Howard had the “severe
impairments of degenerative disc disease and osteoarthritis,
as well as a major depressive disorder,” the administrative 1
The opinion no ted specifically:
judge found that she possessed the residual functional
capacity to “perform limited ranges of light, medium and The ALJ should have included the diagnosis from that same
heavy unskilled work.” The Appeals Council denied review, report which states that Howard suffers from degenera tive disc
making the administrative law judge’s opinion the final disease, iron deficiency anemia, hypertension, and osteoarthritis.
decision of the Commissioner. The ALJ did find that Howard suffered from degenerative d isc
disease and o steoarthritis. But this find ing was not included in
the hypothetical question posed to the VE as it should have been.
Thereafter, Howard sought review of the Commissioner’s
decision in the United States District Court for the Eastern Howard , 276 F.3d at 241. Claimants have sinc e relied upon this language
District of Michigan, pursuant to 42 U.S.C. § 405(g). The to argue that an administrative law judge m ust list the claimant’s medical
magistrate found that substantial evidence supported the conditions in the hypothetical questions. As recently explained by this
Court, however, this argument is inconsistent with this Court’s precedent
Commissioner’s decision and the district court affirmed the and the social security regulatio ns. Webb v. Comm ’r of Soc. Sec.,
magistrate’s findings. Howard appealed to this Court, – F.3d –, No. 03-5158 (6th Cir. M ay 19, 200 4). T hus, we do not read this
arguing that the Commissioner’s decision was not supported language as forming part of the holding of the case, nor do we rely upon
by substantial evidence. We held that the district court erred it in rendering our instant decision that the Commissioner was not
and that the Commissioner’s decision was not supported by substantially justified. See id. (noting that the ad ministrative law judge’s
selective inclusion of the evidence in calculating the residual function
capacity was a sufficient basis upon which to reverse the Commissioner’s
No. 02-2058 Howard v. Comm’r of Social Security 5 6 Howard v. Comm’r of Social Security No. 02-2058
determined that the magistrate formulated Howard’s residual Commissioner’s position was substantially justified. We
functional capacity by considering only that evidence that must determine whether the district court abused its discretion
“cast Howard in a capable light and excluded those portions in so concluding. Pierce v. Underwood, 487 U.S. 552, 562
which showed Howard in a less-than-capable light.” Id. (1988).
Therefore, we reversed the judgment of district court and
remanded the case with the instruction that the district court A position is substantially justified when it is “‘justified in
in turn remand the case to the Commissioner. Id. at 242-43. substance or in the main’–that is, justified to a degree that
could satisfy a reasonable person.” Pierce, 487 U.S. at 565.
On May 1, 2002, Howard filed a request for fees under the Stated otherwise, a position is substantially justified when it
Equal Access to Justice Act. Finding that the has a “reasonable basis both in law and fact.” Id. The fact
Commissioner’s position was “substantially justified,” the that we found that the Commissioner’s position was
district court denied Howard’s request for fees. This timely unsupported by substantial evidence does not foreclose the
appeal followed. possibility that the position was substantially justified. See id.
at 569; Jankovich v. Bowen, 868 F.2d 867, 870 (6th Cir.
II. 1989). Indeed, “Congress did not . . . want the ‘substantially
justified’ standard to ‘be read to raise a presumption that the
The Equal Access to Justice Act “departs from the general Government position was not substantially justified simply
rule that each party to a lawsuit pays his or her own legal because it lost the case. . . .’” Scarborough, 124 S. Ct. at
fees.” Scarborough v. Principi, 124 S. Ct. 1856, 1860 (2004). 1866 (quoting Libas, Ltd. v. United States, 314 F.3d 1362,
The Act requires the payment of fees and expenses to the 1365 (Fed. Cir. 2003).
prevailing party in an action against the United States, unless
the position of the United States was substantially justified. In denying Howard’s application for fees under the Act, the
Id.; 28 U.S.C. § 2412(d)(1)(A).2 On appeal, Howard district court did little more than note that the administrative
challenges the district court’s conclusion that the law judge, magistrate and itself had all agreed with the denial
of the disability benefits. Indeed, the district court noted:
“The reasonableness of the Social Security Agency’s claim is
denial of benefits).
bolstered by the fact that the ALJ’s decision was adopted by
the Magistrate Judge and affirmed by this court.” The district
2
Section 2412 (d)(1)(A ) provide s:
court’s reasoning overemphasizes the significance of this fact.
While a string of losses or successes may be indicative of
Except as otherwise sp ecifically provided by statute, a court whether a position is substantially justified, “the fact that one
shall award to a prevailing pa rty other than the United States fees other court agreed or disagreed with the Government does not
and other expe nses, in addition to any costs awarded pursuant to establish whether its position was substantially justified.”
subsection (a), incurred by that party in any civil action (other
than cases sounding in tort), including proceedings for judicial
Pierce, 487 U.S. at 569.
review of agency action, brought by or against the United States
in any court having jurisdiction of that action, unless the court Under the circumstances of this case, where the
finds that the position of the U nited S tates was substantially administrative law judge was found to have selectively
justified o r that spe cial circumstances make an award unjust. considered the evidence in denying benefits, we hold that the
Commissioner’s decision to defend the administrative law
28 U .S.C. § 241 2(d)(1)(A ).
No. 02-2058 Howard v. Comm’r of Social Security 7
judge’s denial of benefits is without substantial justification.
See Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995) (“The
ALJ failed to consider the TEAM report, both in posing the
hypothetical questions to the vocational expert and in
determining that Flores was not disabled. The Secretary’s
decision to defend this error was not substantially justified.”).
For the foregoing reasons, we REVERSE the district
court’s judgment and REMAND the case to the district court
for a determination as to the reasonableness of Howard’s
requested fees.