Jimmie L. Howard v. Jo Anne B. Barnhart, Commissioner of Social Security

*The Honorable H erman J. W eber, Senior United States District
Judge for the Southern District of Ohio, sitting by designation.
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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0221P (6th Cir.)
File Name: 04a0221p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JIMMIE L. HOWARD,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee.
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No. 02-2058
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-70098—Robert H. Cleland, District Judge.
Argued: January 29, 2004
Decided and Filed: July 12, 2004
Before: MARTIN and MOORE, Circuit Judges; WEBER,
Senior District Judge.*
2 Howard v. Comm’r of Social Security No. 02-2058
_________________
COUNSEL
ARGUED: Lewis M. Seward, SEWARD, TALLY &
PIGGOTT, Bay City, Michigan, for Appellant. Edward P.
Studzinski, SOCIAL SECURITY ADMINISTRATION,
Chicago, Illinois, for Appellee. ON BRIEF: Lewis M.
Seward, SEWARD, TALLY & PIGGOTT, Bay City,
Michigan, for Appellant. Edward P. Studzinski, SOCIAL
SECURITY ADMINISTRATION, Chicago, Illinois, for
Appellee.
_________________
OPINION
_________________
BOYCE F. MARTIN, JR., Circuit Judge. Jimmie Howard
appeals from the district court’s denial of his request for
attorney fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412, in this social security benefits action. Because we
conclude that the district court erred in finding that the
Commissioner of Social Security’s position was
“substantially justified,” we REVERSE and REMAND for a
determination of whether the fees requested were reasonable
under the Act.
I.
Howard applied for supplemental income disability benefits
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
physicians, Dr. Levin, finding his assessments “grossly

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No. 02-2058 Howard v. Comm’r of Social Security 3
restrictive” and based on “scanty factors.” The administrative
law judge then posed two hypothetical questions to the
vocational expert. In the first, he asked whether any jobs
existed in the region for a person having the limitations as
described by Howard. The vocational expert testified that
there were not any jobs available for a person having the
limitations that Howard described. Because the
administrative law judge found Howard’s subjective
assessments less than credible, he posed a second hypothetical
question to the vocational expert. The hypothetical was
reformulated to include only those limitations that the
administrative law judge found were substantiated by the
medical and testimonial evidence.
Given the new limitations, the vocational expert testified
that there were a number of jobs available for a person with
the described limitations. Thus, the administrative law judge,
applying the sequential review process, found that Howard
was not disabled because she could perform a significant
number of jobs despite her impairments. Although the
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
judge found that she possessed the residual functional
capacity to “perform limited ranges of light, medium and
heavy unskilled work.” The Appeals Council denied review,
making the administrative law judge’s opinion the final
decision of the Commissioner.
Thereafter, Howard sought review of the Commissioner’s
decision in the United States District Court for the Eastern
District of Michigan, pursuant to 42 U.S.C. § 405(g). The
magistrate found that substantial evidence supported the
Commissioner’s decision and the district court affirmed the
magistrate’s findings. Howard appealed to this Court,
arguing that the Commissioner’s decision was not supported
by substantial evidence. We held that the district court erred
and that the Commissioner’s decision was not supported by
4 Howard v. Comm’r of Social Security No. 02-2058
1The opinion no ted specifically:
The ALJ should have included the diagnosis from that same
report which states that Howard suffers from degenera tive disc
disease, iron deficiency anemia, hypertension, and osteoarthritis.
The ALJ did find that Howard suffered from degenerative disc
disease and o steoarthritis. But this find ing was not included in
the hypothetical question posed to the VE as it should have been.
Howard , 276 F.3d at 241. Claimants have sinc e relied upon this language
to argue that an administrative law judge must list the claimant’s medical
conditions in the hypothetical questions. As recently explained by this
Court, however, this argument is inconsistent with this Court’s precedent
and the social security regulatio ns. Webb v. Comm ’r of Soc. Sec.,
– F.3d –, No. 03-5158 (6th Cir. M ay 19, 200 4). T hus, we do not read this
language as forming part of the holding of the case, nor do we rely upon
it in rendering our instant decision that the Commissioner was not
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
substantial evidence. Howard v. Comm’r of Soc. Sec., 276
F.3d 235, 241-42 (6th Cir. 2002).
Specifically, we concluded that the administrative law
judge’s formulation of Howard’s residual functional capacity,
did not accurately portray Howard’s abilities and that,
because the administrative law judge’s decision relied upon
the erroneously constructed residual functional capacity, his
decision was unsupported by substantial evidence. Id. at 241.
We explained that the administrative law judge should have
accorded Dr. Levin’s opinions and diagnoses complete
deference because they were–contrary to the administrative
law judge’s finding–supported by clinical and laboratory
findings and were not contradicted by any other medical
opinion. Id. at 240. Moreover, we noted that the
administrative law judge’s hypothetical question “fail[ed] to
describe accurately Howard’s physical and mental
impairments; a defect which, as we have stated, is fatal to the
[vocational expert’s] testimony and the [administrative law
judge’s] reliance upon it.”1 Id. at 241. In essence, we

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No. 02-2058 Howard v. Comm’r of Social Security 5
denial of benefits).
2Section 2412(d)(1)(A ) provides:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United States fees
and other expe nses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other
than cases sounding in tort), including proceedings for judicial
review of agency action, brought by or against the United States
in any court having jurisdiction of that action, unless the court
finds that the position of the U nited States was substantially
justified o r that special circumstances make an award unjust.
28 U .S.C. § 241 2(d)(1)(A ).
determined that the magistrate formulated Howard’s residual
functional capacity by considering only that evidence that
“cast Howard in a capable light and excluded those portions
which showed Howard in a less-than-capable light.” Id.
Therefore, we reversed the judgment of district court and
remanded the case with the instruction that the district court
in turn remand the case to the Commissioner. Id. at 242-43.
On May 1, 2002, Howard filed a request for fees under the
Equal Access to Justice Act. Finding that the
Commissioner’s position was “substantially justified,” the
district court denied Howard’s request for fees. This timely
appeal followed.
II.
The Equal Access to Justice Act “departs from the general
rule that each party to a lawsuit pays his or her own legal
fees.” Scarborough v. Principi, 124 S. Ct. 1856, 1860 (2004).
The Act requires the payment of fees and expenses to the
prevailing party in an action against the United States, unless
the position of the United States was substantially justified.
Id.; 28 U.S.C. § 2412(d)(1)(A).2 On appeal, Howard
challenges the district court’s conclusion that the
6 Howard v. Comm’r of Social Security No. 02-2058
Commissioner’s position was substantially justified. We
must determine whether the district court abused its discretion
in so concluding. Pierce v. Underwood, 487 U.S. 552, 562
(1988).
A position is substantially justified when it is “‘justified in
substance or in the main’–that is, justified to a degree that
could satisfy a reasonable person.” Pierce, 487 U.S. at 565.
Stated otherwise, a position is substantially justified when it
has a “reasonable basis both in law and fact.” Id. The fact
that we found that the Commissioner’s position was
unsupported by substantial evidence does not foreclose the
possibility that the position was substantially justified. See id.
at 569; Jankovich v. Bowen, 868 F.2d 867, 870 (6th Cir.
1989). Indeed, “Congress did not . . . want the ‘substantially
justified’ standard to ‘be read to raise a presumption that the
Government position was not substantially justified simply
because it lost the case. . . .’” Scarborough, 124 S. Ct. at
1866 (quoting Libas, Ltd. v. United States, 314 F.3d 1362,
1365 (Fed. Cir. 2003).
In denying Howard’s application for fees under the Act, the
district court did little more than note that the administrative
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
bolstered by the fact that the ALJ’s decision was adopted by
the Magistrate Judge and affirmed by this court.” The district
court’s reasoning overemphasizes the significance of this fact.
While a string of losses or successes may be indicative of
whether a position is substantially justified, “the fact that one
other court agreed or disagreed with the Government does not
establish whether its position was substantially justified.”
Pierce, 487 U.S. at 569.
Under the circumstances of this case, where the
administrative law judge was found to have selectively
considered the evidence in denying benefits, we hold that the
Commissioner’s decision to defend the administrative law

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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.

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