           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.
