in her reply brief. (Plaintiff's Reply at 5-6.)' Specifically, Dr. Dreviow stated that Plaintiff “could
neither continuously stand for at least six of eight hours nor continuously sit upright for at least six
of eight hours.” Griffith, 2002 WL 181959, at *14. The district court stated that there were two
possible interpretations of this information. /d. One of these interpretations (whether Plaintiff
could sit or stand for six consecutive hours) would have been fully consistent with the ALJ's
decision. /d. The other interpretation, however, that Plaintiff could not regularly sit or stand for a
total of six out of a given eight hours, might have had a bearing on the number of jobs available for
a person of Plaintiff's abilities. At the hearing, the VE noted that the summary provided Dr. Dreviow
was confusing, id. at *7, and the ALJ told Plaintiff's attorney “that [i]f you want [Dr. Dreviow] to
clarify, we can do that, too, because we'll be looking for some records.” /d. at ‘14. There is no
indication here that Plaintiff took the ALJ upon on this offer. in this court's view, these
circumstances do not require the conclusion that the government's position was not substantially
justified. There were two plausible readings of the statements of Dr. Dreviow's findings. The
government could reasonably have understood Dr. Dreviow’s testimony as supporting the ALJ's
conclusion.

Plaintiff relies upon several cases to support her contention that attorney's fees should be
awarded, but the court finds these cases distinguishable. In Kofman v. Shalala, 39 F.3d 173, 177
(7th Cir. 1994), the Seventh Circuit affirmed denial of attorney's fees where the ALJ had relied on
a Ninth Circuit decision in denying plaintiffs claim for disability benefits. Reliance upon the decision
of the Ninth Circuit supplied a “rational ground for [the government's] thinking it had a rational

ground for its action.” /d.

' Apart from a brief reference in a footnote, the government itself did not address this

issue in its response to Plaintiff's motion for fees; the court accepts its explanation that Plaintiff's
own failure, in her brief on appeal, to raise any concern about Dr. Dreviow’s testimony precludes
any argument that the government was not substantially justified in relying on that testimony. In
any event, as explained here, the court concludes the government was substantially justified in
accepting Dr. Dreviow's (unchallenged) testimony.

4



response to her motion for fees did not address the second reason for the district court's remand
order (ambiguity in Dr. Dreviow's testimony), the court should find the government's position was
not substantially justified. (Plaintiff's Reply at 5.) These reasons are addressed below.

1. incomplete Hypothetical

Inthe Administrative Proceedings, the VE was asked a hypothetical question that described
a person who “by reason of a depressive condition does not have the capacity to understand,
recall, carry out complex or detailed tasks, but does retain the capacity to understand, recall, and
carry out simple tasks and simple instructions on a sustained basis.” Griffith, 2002 WL 181959,
at 13. As the court concluded in its earlier decision, this question was arguably incomplete
because it did not specifically mention Plaintiff's concentration difficulties. Plaintiff now asserts that
the ALJ relied “totally” upon the testimony of the VE response to the hypothetical question in
determining her ability to work. (Plaintiffs Reply at 2.) In the court's view, the record does not
support this assertion. Further, this court determined that the ALJ's omission might have been
significant, but that determination alone does not require the conclusion that the government's
position was not substantially justified. See Jackson, 94 F.3d at 279 (even where the government
is ultimately in error on an issue, its position may be substantially justified).

In this case, Plaintiffs own attorney did not pose any additional hypotheticals at the
administrative hearing to address the omitted impairment. Griffith, 2002 WL 181959 at *14. The
court did note that the VE had reviewed the record before the hearing and heard the Plaintiff's own
testimony. fd. The court concludes that the government's position was justified where the
government could reasonably have believed that the VE had used all information available to
assess the Plaintiff's ability to work.

2. Ambiguity in Dr. Dreviow’s Testimony

Plaintiff's second argument that the government's position was not justified appears only



In Jackson, the Seventh Circuit found that there was ample evidence in the record to
support the ALJ's findings, despite a discrepancy in the testimony of the vocational expert and the
employment statistics quarterly that resulted ina remand. 94 F.3d at 279. An inconsistency is not
enough to render government litigation unjustified, the court observed, and the govemment is
entitled to choose between two permissible views of available evidence, even where that evidence
conflicts. /d. at 280. in this case, similarly, although this court was concerned that the
incompleteness of the hypothetical question might have affected the VE's determination of
Plaintiff's job eligibility, the government could reasonably have concluded it was not significant
when the VE had heard Plaintiff's testimony and reviewed all of the medical records. Further,
because there were two plausible readings of Dr. Dreviow’s testimony, one of which would have
made no difference in the ALJ's determination, and Plaintiff herself made no effort to correct the
ambiguity, the government's reliance upon one interpretation of Dr. Dreviow’s testimony does not
make its overall litigation posture unjustified and unreasonable.

In Rice v. Apfel, 16 F.Supp.2d 971 (N.D. Ill. 1998), another case Plaintiff cites, the court
awarded fees to plaintiff where the ALJ failed to comply with a specific regulation requiring the use
of a medical advisor. /d. at 974. Here, there is no suggestion that the ALJ's conduct violated any
specific regulation. in Prak v. Chater, 908 F.Supp. 555, 556 (N.D. Ill. 1995), the court awarded
fees where the ALJ erroneously concluded that plaintiff had never been diagnosed with post-
traumatic stress disorder, when in fact precisely such a diagnosis appeared in the record. Finally,
Plaintiff relies on Randolph v. Sullivan, 738 F.Supp. 305 (N.D. Ill. 1990). In awarding fees in that
case, the district court observed that ALJ “failed to perform a certain analysis required by the law
and by the regulations.” /d. at 306. The ALJ did perform the required analysis in this case, though
the court determined some of the information presented was incomplete or ambiguous.

As the Randolph court noted, “[t]he mere fact that benefits were awarded on remand does
not necessarily mean, as Plaintiff asserts,.that the Secretary's position was not substantially

5



% rc onte Ma cose
United States District Court, Northern District of Illinois

OFRCP4(m) CLocal Rule 41.1 COFRCP41{a\(1) O FRCP41(a)(2).

(Doc. No. 24-1) under the EAJA is denied.

(11) =f [For further detail see order attached to the original minute order.]

ame of ign Jade pe RPallmeyer | tn Jue oer
CASE NUMBER 00 C 7302 DATE 2/14/2003
CASE Gerlene Griffith vs. Jo Ann B. Barnhart
TITLE
[in the following box (a) indicate the party filing the motion, e g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being prescnted.}
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
@) a Answer brief to motion due___. Reply to answer brief due__.
(4) Oo Ruling/Hearingon__setfor___at
(5) a Status hearing[held/continued to] [set for/re-set for] on setfor at.
(6) o Pretrial conference[held/continued to] [set for/re-set forlon___———ssetfor saat
(ea) Oo Trial{set for/re-set for]on__at
(8) oO [Bench/Jury trial] [Hearing] held/continuedto__at
(0) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

(10) Ml [Otherdocketentry} Enter Memorandum Opinion And Order. Plaintiff's motion for attorney’s fees

No notices required, advised in open court.
2

No notices required.

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justified.” /d. at 306. Further, even where the court finds the government wrong with respect to
one aspect of its position, its overall litigation posture may well be substantially justified. Pierce, 487
U.S. at 569. To make the determination, the court must examine the totality of the government's
conduct. Cummings v. Sullivan, 950 F. 2d 492, 496 (7th Cir. 1991). Considering the totality of
circumstances here, the court concludes that the government's willingness to defend a
determination made on the basis of an arguably incomplete hypothetical and arguably ambiguous
testimony does not render its overall litigation posture unreasonable.

Finally, the court notes Plaintiff's observation that if the ALJ had stopped at step four of the
disability analysis, Plaintiff would have won her claim for disability. (Plaintiff's Reply, at 3.) The
court is not persuaded. The disability determination is a two-tiered process. If the claimant does
not prevail at steps one through three, then the ALJ must do an analysis under steps four and five,
first assessing whether the claimant is unable to perform previous work and then, if the answer is
no, determining at step five whether there is any work that she can do meaningfully in the
economy. For the ALJ to stop at step four of the analysis would be a misapplication of the disability
analysis.

CONCLUSION
For the foregoing reasons, Plaintiff's motion for attorney's fees (Doc. No. 24-1) under the

EAJA is denied.

REBECCA R. PACK
United States District

Dated: February 14, 2003



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

Dorvergy

FEE ~ 3909

GERLENE GRIFFITH,
Plaintiff,
v. No. 00 cv 7302

JO ANN B. BARNHART,
Commissioner of Social Security,

Judge Rebecca R. Pallmeyer

www eee SS SS

DOCKETED

FEB 1 8 2003

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiff, Gerlene Griffith, prevailed in this action for review of the denial of her application

for Disability Insurance Benefits and Supplementary Security Income under Titles ll and XVI of the

Social Security Act, 42 U.S.C. §§416(i), 423, 1381a. She now seeks an award of attorneys’ fees,

arguing that the government's position in this case was not substantially justified. For the reasons
stated herein, Plaintiffs motion for attorney's fees is denied.

; PROCEDURAL BACKGROUND

Plaintiff claims she is disabled by a lesion on her hip attributed to lupus. The Commissioner

of the Social Security Administration (“the Commissioner”) denied her claim for benefits, but she

sought review by this court pursuant to 42 U.S.C. § 405(g). On review, this court concluded the

record supported the ALJ’s conclusions on steps one through three of the analysis. Griffin v.

Barnhart, No. 00 C 7302, 2002 WL 181959, “10 (N.D.III. Feb. 6, 2002). At steps four and five,

however, the district court found potential errors in the disability determination and remanded for

further proceedings. Specifically, the court noted that in questioning the vocational expert (“VE”),

the ALJ failed to mention Plaintiff's difficulties in concentration. The court concluded this omission

could have affected the VE’s testimony in spite of the fact that the VE had heard Plaintiffs

testimony and reviewed medical records. /d. at 13, 14. The court further noted a potential

ambiguity in the testimony of Dr. B. Drevlow, who had examined Plaintiff to help determine her



ability to work. Under one interpretation of Dr. Dreviow's statements, Plaintiff could not sit or stand
for six consecutive hours within an eight-hour period. /d. at 7. Another interpretation of Dr.
Dreviow's statements, however, would mean that Plaintiff could not regularly sit or stand for a total
of six hours during an eight hour period, even if she were able to alternate between sitting for forty-
five minutes and standing for five minutes. /d. at 14. Because of this ambiguity and the arguably
incomplete hypothetical, the district court remanded the case to the ALJ for further findings. Id.
Plaintiff now seeks attorney's fees under 28 U.S.C. § 2412(d)(1)(A).
DISCUSSION

The Equal Access to Justice Act (“EAJA”) provides that:

[e]xcept as otherwise specifically provide by statute, a court shall award to a

prevailing party other than the United States fees and other expenses . . . incurred

by that party in any civil action . . brought by or against the United States... unless

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

28 U.S.C. § 2412 (d)(1)(A) (2000).

The Government has the burden of proving that its position was substantially justified.
Jackson v. Chater, 94 F.3d 274, 277 (7th Cir. 1996). This determination is based upon the entirety
of the proceedings, Cummings v. Sullivan, 950 F.2d 492, 496 (7th Cir. 1991), and requires a
showing that the Government's position was justified from a reasonable basis in both law and fact.
Pierce v. Underwood, 487 U.S. 552, 565 (1988). A position can be justified even if itis not correct,
so long as a reasonable person could think it correct. /d. at 566 n.2. See also Stein v. Sullivan,
966 F.2d 317, 320 (7th Cir. 1992) (substantially justified standard is satisfied if reasonable people
could differ as to the’ appropriateness of the contested action).

Plaintiff argues that the government's position was not substantially justified here because
the ALJ's reliance on the VE's testimony was unreasonable as a matter of law. (Plaintiff's Reply

to Defendant's Response to Plaintiff's Application for Attorney's Fees Under the Equal Access to

Justice Act (“Plaintiffs Reply’) at 3.) Second, Plaintiff asserts that because the government's