UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

OPINION AND ORDER

On January 19, 2017, Plaintiff, James Green (“Green”), filed his Motion for Award of 

Attorney Fees Pursuant to the Equal Access to Justice Act (“EAJA”) 28 U.S.C. § 2412(d)

seeking $7,942.00 in attorney fees. On February 1, 2017, Defendant, Commissioner of Social 

Security (“Commissioner”), filed a response arguing that fees were not warranted because the 

her position was substantially justified. Green’s motion became ripe on March 8, 2017, when he 

filed a reply brief. On March 8, 2017, Green also filed his Supplemental Motion of Award of 

Attorney’s Fees Pursuant to the EAJA seeking $10,032.00 in attorney fees, which included 

supplemental work. The Commissioner filed no response to Green’s supplemental motion.

I. RELEVANT BACKGROUND

On September 12, 2012, Green filed an application for SSI, alleging disability beginning 

September 12, 2012. Green’s application was denied, and after a hearing, an administrative law 

judge (“ALJ”) issued a decision denying Green’s claim. 

 1 Pursuant to Fed. R. Civ. P. 25(d), Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. 

Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last 

sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

JAMES KYLE GREEN,

Plaintiff, 

v. 

NANCY A. BERRYHILL,

1 Acting 

Commissioner of Social Security

Social Security, 

Defendant. 

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 CAUSE NO. 3:15-CV-00180-MGG
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On April 23, 2015, Green filed a complaint in this Court seeking reversal or remand of 

the Commissioner’s decision. The Court remanded the case to the Social Security 

Administration in order to more fully articulate its rationale at the Step Three and RFC analyses. 

Both analyses failed to build a logical bridge between the evidence in the record and the ALJ’s 

conclusions that Green did not meet Listings 3.04B (Cystic Fibrosis) and 5.08 (Weight loss due 

to any digestive disorder) and that he could perform sedentary work. 

Green now argues that he is entitled to attorney fees pursuant to the EAJA because he is 

the prevailing party and the Commission’s position was not substantially justified. Green also

requests a cost-of-living adjustment of fees. In total, Green claims $10,032.00 in attorney fees 

and asks that the full amount be paid directly to his attorney.

II. ANALYSIS 

The EAJA provides that “. . . a court shall award to a prevailing party other than the 

United States fees and other expenses, in addition to costs awarded pursuant to subsection (a), 

incurred by that party in any civil action . . . including proceedings for judicial review of agency 

action . . . unless the court finds that the position of the United States was substantially justified . 

. . .” 28 U.S.C. § 2412(d)(1)(A). A party seeking an award of fees must be a prevailing party, 

timely file a petition, request reasonable fees, and allege that the United State or agency was not 

substantially justified. See 28 U.S.C. § 2412(d)(1)(B). The only issue disputed, here, is whether 

the government’s position was substantially justified.

The Commissioner bears the burden of establishing that her position was substantially 

justified. Mogg v. Astrue, 266 F. App’x 470, 471 (7th Cir. 2008). The Commissioner’s position 

includes her position during litigation and during the administrative proceeding. 28 U.S.C. 

§ 2412(d)(2)(D); Cummings v. Sullivan, 950 F.2d 492, 496 (7th Cir. 1991). The Commissioner’s 
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position is substantially justified if it is “justified to a degree that could satisfy a reasonable 

person,” or in other words, “if it has a reasonable basis in law and fact.” Pierce v. Underwood, 

487 U.S. 552, 565–66 (1988). This 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 v. Barnhart, 382 F.3d 721, 724 (7th 

Cir. 2004).

In this case, the Commissioner argues that the ALJ’s mistakes were no more than errors 

of articulation, which do not compel a finding that the government’s position was not 

substantially justified. [DE 38 at 45]. The Court is not persuaded. As discussed below, the 

ALJ’s failure to articulate rose to such a degree that the Court could not evaluate the 

reasonableness of the opinion. Moreover, the Commissioner defended the ALJ’s opinion on a 

forbidden basis before this Court.

A. The ALJ failed to discuss either Listing adequately 

Here, the Court remanded Green’s case because the ALJ’s step three analysis did not 

build a logical bridge between the evidence in the record and the ALJ’s conclusion that no 

Listing was satisfied. [DE 33 at 11, 13]. There was evidence that both Listings 3.04B and 5.08 

were satisfied, yet the ALJ articulated nothing to dismiss the Listings other than to state that 

3.04B was not met without any mention of 5.08. In addition, the Commissioner argued on behalf 

of the SSA before this Court contending that the ALJ’s decision included evidence 

demonstrating that the ALJ found Green noncompliant with treatment, which would necessarily 

defeat eligibility for both Listings. The ALJ’s reliance on Plaintiff’s possible noncompliance 

with treatment, however, was not clearly stated in his decision. The only hint the ALJ gave of a 
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finding of noncompliance with treatment was his statement that Plaintiff’s FEV1 values 

improved during each of his hospitalizations. [DE 11 at 26]. The ALJ never used the word, 

“noncompliant,” and it is far too big a leap to conclude that the ALJ inferred noncompliance 

from Green’s improved FEV1 values.

It is the ALJ, not the Commissioner’s lawyers, who must “‘build an accurate and logical

bridge from the evidence to h[is] conclusion.’” Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 

2002) (quoting Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir.2001)). The Court must 

confine its review to the reasons supplied by the ALJ. Id. (citing SEC v. Chenery Corp., 318 

U.S. 80, 93–95 (1943); Johnson v. Apfel, 189 F.3d 561, 564 (7th Cir.1999); Sarchet v. Chater, 78 

F.3d 305, 307 (7th Cir.1996)). Yet, “[t]he commissioner’s position [during judicial review 

before the district court] may be substantially justified even if it turns out to be completely 

wrong.” Bassett v. Astrue, 641 F.3d 857, 859 (7th Cir. 2011).

Here, Green argues that the ALJ’s “inadequate discussion” was more than a mere failure 

to articulate. In support, Green cites Brindisi ex rel. Brindisi v. Barnhart, No. 00 C 6495, 2003 

WL 21696195, at *3 (N.D. Ill. July 21, 2003) and Scott v. Barnhart, No. 99 C 4651, 2003 WL 

1524624, at *6 (N.D. Ill. Mar. 21, 2003)] for the proposition that an ALJ’s opinion can be so 

deficient in its analysis that it crosses the line from a mere failure to articulate to the point where 

a court cannot evaluate the reasonableness of the ALJ’s finding. In both cases, EAJA fees were 

awarded to the claimant after the Seventh Circuit reversed and remanded based on the ALJs’ 

improper evaluation of a Listing.

In Brindisi, the ALJ did not even mention the Listings under which the claimant was 

evaluated and failed to discuss an audiogram, which the Seventh Circuit considered to be the 

most relevant piece of evidence. 2003 WL 21696195, at *1. The ALJ also failed to comply with 
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a Social Security Ruling requirement that he explain his finding that the parents in that case were 

not fully credible. Id. at 2. In its consideration of the claimant’s request for EAJA fees, the 

district court opined that “mere inadequate explanation” does not mandate an award of EAJA 

fees. Id. at *4. The court, however, found that the Commissioner’s position in that particular 

case was not substantially justified based on the Seventh Circuit’s conclusion that the ALJ’s 

opinion was so devoid of support that it could not even determine the reasonableness of the 

ALJ’s finding. Id.

In Scott, the Seventh Circuit had previously held that the ALJ failed to adequately discuss 

an applicable Listing and failed to adequately discuss the evidentiary record in the context of that 

Listing. 2003 WL 1524624, at *3. In the Seventh Circuit’s view, the ALJ’s decision provided 

no reasonable way to discern whether the decision had an adequate factual basis. Id. at 2. The 

district court accordingly concluded that the Commissioner lacked a substantially justified 

position. Id. at 6. 

Here, the ALJ’s decision left the Court with no articulated explanation for why Listings 

3.04B and 5.08 were not met, especially in light of evidence in the record suggesting otherwise. 

As such, the ALJ’s failure to articulate prevented the Court from evaluating the reasonableness 

of the ALJ’s finding. The Commissioner’s post hoc noncompliance argument also carries no 

weight in light of the lack of any reference to noncompliance in the ALJ’s opinion. Therefore, 

the Commissioner’s position was not substantially justified and EAJA fees are in order. 

B. The Commissioner defended the ALJ’s opinion on a forbidden basis

The Commissioner’s noncompliance argument also was improperly raised with the 

apparent goal of filling a gaping hole in the ALJ’s analysis, but without having been made by the 

ALJ in the first place. The Commissioner’s position is unjustified when the Commissioner 
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defends the ALJ’s opinion on a forbidden basis. Bassett, 641 F.3d at 860 (citing Golembiewski,

382 F.3d at 724). “[G]eneral principles of administrative law preclude the Commissioner’s 

lawyers from advancing grounds in support of the agency’s decision that were not given by the 

ALJ.” Golembiewski, 382 F.3d at 725. Without any reference to, or even a reasonable inference 

of, noncompliance in the ALJ’s opinion, the Commissioner was forbidden from attempting to 

support the ALJ’s decision based on noncompliance. Therefore, the Commissioner’s 

noncompliance argument was not substantially justified.

CONCLUSION 

Because the ALJ left the Court with no means of evaluating the reasonableness of his 

finding, and the Commissioner defended the opinion on a forbidden basis, the Commissioner’s

position was not substantially justified. Therefore, the Court GRANTS Green’s motions [DE 35 

& 42]. The Court ORDERS the Commissioner to pay Green $10,032.00 for attorney’s fees with 

permission to make the award payable directly to Green’s attorney, Joseph W. Shull, should the 

Commissioner determine that Green owes no debt subject to offset. See Mathews-Sheets v.

Astrue, 653 F.3d 560, 565–66 (7th Cir. 2011) (citing Astrue v. Ratliff, 560 U.S. 586, 593–94 

(2010)).

SO ORDERED

Dated this 19th day of April 2017. 

s/Michael G. Gotsch, Sr. 

Michael G. Gotsch, Sr. 

United States Magistrate Judge