The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Elizabeth Martinez brings this motion for attorney's fees and
costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d),
for the prosecution of her Social Security appeal and for this motion for
fees and costs. The parties have consented to have this Court conduct any
and all proceedings in this case, including the entry of final judgment.
See 28 U.S.C. § 636(c); Local R. 73.1(a). For the following reasons, the
motion is granted.
Plaintiff applied for disability insurance benefits in 1999, alleging
disability due to diabetes with neuropathy, and obesity. After
Plaintiff's claim was denied at every level of the administration,
Plaintiff sought judicial review of the final decision denying benefits.
The Court granted Plaintiff's motion to reverse the Commissioner's final
decision and remanded the case for further proceedings. Martinez v.
Barnhart, No. 02 C 2354, 2003 WL 22764594, at *9 (Nov. 17, 2003). This
application for fees followed. Defendant has not contested the fee
Under the EAJA, fees may be awarded where 1) the plaintiff is the
"prevailing party"; 2) the government's position was not substantially
justified; 3) no "special circumstances make an
award unjust"; and 4) the fee petition is submitted within thirty days of
final judgment and is accompanied by an itemized statement. 28 U.S.C §
2412(d)(1)(A). Here, Plaintiff was the "prevailing party," her
timely-filed motion was accompanied by an itemization, and there are no
special circumstances which would make an award of fees unjust.
Furthermore, the government does not even contest that the administrative
determination of the Commissioner of Social Security was not
substantially justified upon the record as a whole. C.f. United States
v. Hallmark Constr. Co., 200 F.3d 1076, 1079 (7th Cir. 2000) (noting that
"the government bears the burden of proving that its position meets the
substantially justified standard"). The government's position is not
substantially justified if it does not have a reasonable basis in law and
fact. Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988).
The Court agrees that the Commissioner's position was not substantially
justified. First, the ALJ failed to resolve inconsistencies in the record
when determining Plaintiff's RFC. Next, he ignored certain evidence
favorable to Plaintiff regarding her obesity, and the effects it might
have on her other medically demonstrable impairments. Therefore, we find
that the government's position was not substantially justified and
Plaintiff is entitled to attorney fees and costs. See e.g. Godbey v.
Massanari, No. 99 C 2690, 2001 WL 1035205, at *3 (N.D. Ill. Sept. 4,
2001) (government's position was not substantially justified where ALJ
possibly failed to consider crucial evidence which might cause him to
change his decision on remand).
We now turn to the question of whether the fees and costs submitted by
Plaintiff are reasonable. The EAJA provides that a court may award costs
and reasonable attorney's fees based on prevailing market rates, but not
to exceed $125 per hour unless cost of living justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A)(ii). We find that the cost of living increases
according to the Consumer Price Index justify a higher hourly rate
for attorney's fees. We additionally find that the time spent by
Plaintiff's attorney on this case is reasonable and proper.
Thus, we grant Plaintiff's motion for an award of fees pursuant to the
EAJA in the amount of $5,202.23 and costs in the amount of $180.60. The
total amount of $5,382.83 should be paid directly to Plaintiff's
attorney, Ashley S. Rose.
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