Janet Taylor v. Michael Astrue , 401 F. App'x 121 ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued October 6, 2010
Decided November 3, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 10-1809 Appeal from the United
States District Court for the
JANET L. TAYLOR, Central District of Illinois.
Plaintiff-Appellant,
No. 08-CV-2178
v. Michael P. McCuskey, Chief
MICHAEL J. ASTRUE, Judge.
Commissioner of Social Security,
Defendant-Appellee.
Order
Contending that she was disabled by sarcoidosis, Janet Taylor applied for disability
insurance. An administrative law judge did not believe Taylor’s account of her condi-
tion’s effects and concluded that she could still perform her most recent job, that of re-
tail stock clerk. This led to an order denying the application for benefits.
On her application for judicial review, a magistrate judge recommended that the
court remand for further consideration of the application. 2009 U.S. Dist. LEXIS 74884(C.D. Ill. Aug. 4, 2009). The magistrate judge concluded that substantial evidence sup-
ports the ALJ’s decision to disbelieve Taylor, but he faulted the ALJ’s opinion for failing
to discuss Taylor’s obesity, which had been caused by drugs that Taylor took to combat
the sarcoidosis. The magistrate judge recognized that Taylor had not requested benefits
based on obesity but thought that the ALJ nonetheless should have discussed complica-
tions of her medical treatment. And, the magistrate judge added, because the proceed-
ing would be remanded, the ALJ should discuss Taylor’s self-report of depression. No
medical evidence supported this report, and Taylor was not receiving treatment for any
mental condition, but the magistrate judge thought it best to flag this as an issue for fur-
ther consideration. The district judge approved the magistrate judge’s recommenda-
tion. 2009 U.S. Dist. LEXIS 74902 (C.D. Ill. Aug. 24, 2009).
No. 10-1809 Page 2
Taylor then filed a motion for attorneys’ fees under the Equal Access to Justice Act,
28 U.S.C. §2412. (The motion was late, but the Commissioner makes nothing of this,
and, as the deadline is not jurisdictional, we don’t either.) The remand makes her a
“prevailing party,” see Shalala v. Schaefer, 509 U.S. 292 (1993), which entitles her to fees
“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). The
magistrate judge concluded that the agency’s position was substantially justified and
recommended that the district judge deny the motion. 2009 U.S. Dist. LEXIS 124456 (C.D.
Ill. Dec. 11, 2009). The district judge agreed with this recommendation, 2010 U.S. Dist.
LEXIS 8650 (C.D. Ill. Feb. 2, 2010), and Taylor has appealed.
Much of Taylor’s argument amounts to a contention that the showing required for a
remand is so high that the agency’s defense of its position cannot have been substan-
tially justified. That position is not compatible with the principle that it is possible for the
agency to lose on the merits while having a substantially justified position, see Pierce v.
Underwood, 487 U.S. 552 (1988), and in particular conflicts with the law of this circuit con-
cerning remands in Social Security disability cases. See United States v. Thouvenot, Wade
& Moerschen, Inc., 596 F.3d 378 (7th Cir. 2010). We held in Thouvenot not only that it is
possible for the Social Security Administration to have a substantially justified position
that fails on the merits, but also that if the same judge who remands a disability pro-
ceeding later denies a motion for attorneys’ fees that the EAJA decision is “entitled to
substantial weight”. Id. at 387.
A court must consider the agency’s position as a whole, not just the parts that failed
to persuade. See Gatimi v. Holder, 606 F.3d 344, 349 (7th Cir. 2010). The main issue in this
proceeding was whether the ALJ’s credibility decision was supported by substantial
evidence. On that question the agency prevailed. Taylor had not argued to the ALJ that
her obesity or depression supported disability benefits; it is therefore understandable
that the ALJ did not discuss them. The remand order reflects a judicial decision that re-
lated and potentially interacting conditions should be discussed fully. That the court
reached this conclusion does not imply that either the ALJ’s decision or counsel’s de-
fense of it was unjustified. We therefore conclude that the district court did not abuse its
discretion (the applicable standard, see Underwood) when denying the motion for attor-
neys’ fees.
AFFIRMED