impaired his ability to perform light work only slightly, or because the administrative law judge confused a medical advisor with a vocational specialist.
Id. (emphasis added).
The language of the appellate court's opinion indicates that the Secretary's decision was overturned because of serious flaws in fact and in law. The Seventh Circuit found the ALJ's position to be inconsistent, illogical, untenable, and contrary to regulations and Social Security Rulings. As identified by the court of appeals, the legal and factual errors committed by the ALJ dissuade the reasonableness of the Secretary's position. The Secretary's denial of DeFrancesco's disability benef its cannot be justified to a degree that could satisfy a reasonable person. Accordingly, plaintiff is entitled to fees under the EAJA.
Having established that plaintiff is entitled to EAJA fees, the court can now address the specifics of plaintiff's application. Plaintiff seeks compensation for 239.75 hours of attorney time at $ 175 per hour and 21 hours of work by law students at $ 75 per hour. The attorney time set forth in plaintiff's application accounts for all of the legal work performed in connection with this case, including the time spent in proceedings before this court, before the court of appeals, and before the ALJ and the Secretary on remand. Since plaintiff succeeded in establishing her rights to disability benefits, she is entitled to compensation for all of the time reasonably expended in the success of this action. See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S. Ct. 2316, 2320, 110 L. Ed. 2d 134 (1990) (time reasonably expended is compensable under the EAJA); Texas State Teachers Association v. Garland Independent School District, 489 U.S. 782, 109 S. Ct. 1486, 1493, 103 L. Ed. 2d 866 (1989) (degree of claimant's success relevant in quantifying applicant's entitlement to fees). The Secretary requests that plaintiff's compensable attorney time be limited to plaintiff's successful endeavors, and additionally asks that the hourly rates requested by plaintiff be reduced.
The Secretary contends that any award to plaintiff should be discounted by any aspect of the litigation on which plaintiff did not succeed. Specifically, the Secretary identifies the time spent by plaintiff in the unsuccessful attempt to persuade the Appeals Council, on remand, to find DeFrancesco disabled as of February 12, 1984, rather than as of March 13, 1986. However, plaintiff's lack of success with the Appeals Council is inconsequential in light this court's reversal of the Appeals Council's final decision and plaintiff's ultimate success on her endeavor. DeFrancesco v. Sullivan, 794 F. Supp. 282 (N.D. Ill. 1992). Nevertheless, this court has identified some duplicative or unnecessary hours, such as several 15-minute items for phone calls to various parties requesting information or regarding scheduling, which ordinarily require one minute or less, in plaintiff's time logs. These problems are very limited; however, as a result, the court cuts the overall number of attorney hours requested, 239.75, by five percent rounded to the nearest full hour, leaving 228 hours. The full 21 hours of law student time that plaintiff requested is allowed.
With regard to the requested hourly rates, the EAJA provides a maximum $ 75 hourly rate for attorneys, unless the court finds that higher rates are justified by cost-of-living increases or a "special factor" such as a limited availability of attorneys for such proceedings. 28 U.S.C. § 2412(d)(2)(A). Plaintiff contends that a "special factor" exists here because few, if any, qualified attorneys in the Chicago area are willing to take such cases at a $ 75 per hour rate; plaintiff alleges that a $ 175 per hour rate is necessary to attract experienced counsel for such cases in this area. Such general market rate details, however, do no constitute a "special factor" sufficient to justify an increase in the maximum statutory rate. Pierce v. Underwood, 487 U.S. 552, 571-72, 101 L. Ed. 2d 490 , 108 S. Ct. 2541 (1988). "Special factor" instead refers to specialized skills necessary for the particular case, which plaintiff has failed to show. Id. at 572-73.
Alternatively, plaintiff seeks a cost-of-living increase to $ 143.61 for the attorneys based on the "legal services" increase identified in the Consumer Price Index ("CPI"). As a tertiary position, plaintiff suggests a $ 112.20 hourly rate based on the "all items" increase in the CPI. The Secretary argues that, if any fee award is allowed, the "all items" CPI increase should be applied, for an hourly rate of $ 111.37.
The court agrees with those courts that have applied the "all items" CPI figure as the best means of implementing Congress's allowance in § 2412(d)(2)(A) of "cost of living" adjustments to the $ 7 attorney's fee ceiling. See, e.g., Sullivan v. Sullivan, 958 F.2d 574, 576-77 (4th Cir. 1992); Uskokovic v. Sullivan, 772 F. Supp. 387, 392-93 (N.D. Ill. 1991). The Plaintiff's $ 112.20 rate is consistent with recent awards by other courts, and is therefore accepted. See, e.g., Lindner v. Sullivan, 799 F. Supp. 888 (N.D. Ill. 1992) (August 1992 award at $ 112.50 rate); McPhan v. Sullivan, No. 86 C 5237 (N.D. Ill. August 21, 1992) (August 1992 award at $ 112.50 rate); Butts v. Bowen, 775 F. Supp. 1167, 1173 (N.D. Ill. 1991) (October 1991 award at $ 111.37 rate); Uskokovic, 772 F. Supp. at 393 (July 1991 award at $ 107.25 rate); Kidd v. Sullivan, No. 87 C 8532, 1990 U.S. Dist. LEXIS 8394, at *4 (N.D. Ill. July 2, 1990) ($ 104 rate).
Finally, the court finds the $ 75 hourly rate requested for the law student to be excessive and accordingly reduces it to $ 40. The requested $ 2,106 in expenses and $ 120 in costs, however, are allowed in full.
Plaintiff's fee petition is granted in part and denied in part. Plaintiff is awarded fees of $ 26421.60, expenses of $ 2,106 and costs of $ 120, for a total award of $ 28,647.60. The Secretary is directed to pay this judgment to plaintiff's attorney, Frederick J. Daley, who shall then reimburse plaintiff for any expenses or costs which she has already paid.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court