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United States District Court, N.D. Illinois

February 20, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: MARTIN ASHMAN, Magistrate Judge


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 petition.

  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 Page 2 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 as calculated Page 3 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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