United States District Court, N.D. Illinois
February 24, 2004.
DONALD ROHAN, Plaintiff,
JO ANNE B. BARNHART, Commissioner of Social Security, Defendant
The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge
MEMORANDUM OPINION AND ORDER
After eleven years, it is time to bring this litigation to an end.
This case comes before this Court on three motions. The first is a motion
for summary judgment filed by Plaintiff Donald Rohan ("Plaintiff),
seeking reversal of the Administrative Law Judge's ("AL.T") finding of
not disabled for the period from Tune 30, 1989 to March 29, 1992. The
second is a motion for remand filed by Defendant Jo Anne B. Barnhart,
Commissioner of Social Security ("Commissioner"), seeking to give the A1J
another opportunity to comply with the Seventh Circuit's and this Court's
prior remand orders. The third is a request for fees, filed by Plaintiff,
under the Equal Access to Justice Act ("EAJA"), 28 U.S.C, § 2412.
There are two primary issues. First, whether the onset date of
Plaintiff's disability is March 30, 1992. Second, whether remand to the
Commissioner for further proceedings is proper, considering the
inordinate number of years Plaintiff's application for disability
insurance benefits ("DIB") has been pending and the actions of the Social
Administration ("SSA") during that time. For the following reasons, the
Court enters judgment for Plaintiff, denies the Commissioner's motion for
remand, and awards Plaintiff $5,802.50 in fees under the EAJA,
A. PROCEDURAL HISTORY
1. The First Proceeding
Plaintiff, who alleges low back pain secondary to a herniated disc and
Major Depressive Disorder, filed an application for DIB on August 10,
1992, claiming a disability from June 30, 1989. R, 54-56. The application
was denied initially and upon reconsideration. R. 67-76. Plaintiff filed
a timely request for an administrative hearing, which ALJ James A. Horn
held on February 2, 1994. R. 77-79, 268-3 15. On June 23, 1994, ALJ Horn
issued an unfavorable decision, denying Plaintiff any benefits and
finding no period of disability. R. 12-24, Plaintiff's request for review
to the Appeals Council was denied on October 27, 1994, because, inter
alia, the contentions raised by Plaintiff to the Appeals Council
were repetitive of those previously submitted to the ALJ and addressed in
the decision. R, 5-6,
Plaintiff then filed a complaint in the district court requesting
judicial review of the Commissioner's decision, and the parties filed
cross-motions for summary judgment, which resulted in a decision against
Plaintiff on January 16, 1996. Rohan v. Chater, No. 95 C0001, 1996 WL
19583 (N.D. Ill. Jan. 16, 1996). After the court denied Plaintiff's
motion to alter
or amend (he judgment. Plaintiff appealed the decision to the Seventh
Circuit Court of Appeals, which remanded the case for further proceedings
consistent with its order, Rohan v. Chater, 98 F.3d 966 (7th Cir. 1996).
The Seventh Circuit criticized the ALJ for committing a number of
errors, id. at 970-71. For instance, the ALJ improperly disregarded the
most current objective evidence of Plaintiff's limitations submitted by
psychiatrist Dr. Michael S. Shapiro, Id. at 970. The ALJ also improperly
substituted his judgment for that of Dr. Shapiro by indulging his own lay
view of depression. Id. The court found that the ALJ impermissibly relied
upon Plaintiff's efforts at engaging in a small machine repair/resale
business as being inconsistent with a diagnosis of major depression and
limited functional abilities. Id. Because of these errors, the court
recommended that the case be assigned to a different ALJ on remand. Id.
2. The Second Proceeding
Pursuant to the Seventh Circuit's order, the Appeals Council remanded
the case to ALJ John L, Mondi to give further consideration to treating
sources. R. 445-48. ALJ Mondi held a new hearing on March 18, 1999. R.
359-444. At that hearing, the Medical Expert, Dr. Richard Zaloudek,
testified that Plaintiff did have a severe mental impairment, but could
not comment about whether the onset date was anytime between June 1989
and March 1992 because he had no notes pertaining to that period. R. 419,
421. Additionally, the Vocational Expert, Lee Knutson, testified that the
combination of mental and physical impairments suffered by Plaintiff
would prevent him from being employable. R. 430, 432. Based on this
record, the AIJ issued a partially favorable decision on June 28,
1999, awarding Plaintiff DIB from March 30, 1992 to October 31, 1997. R.
339-55. The ALJ set the onset date of Plaintiff's disability to reflect
the date Plaintiff was first diagnosed by his psychiatrist. R. 352.
Plaintiff appealed the unfavorable portion of the decision, contending
that Plaintiff's onset date was June 30, 1989. R.337-38. He also
submitted a memorandum of exceptions and requested the Appeals Council to
lake jurisdiction over the case. R. 316-25.
In the memorandum of exceptions, which was filed without the benefit of
the hearing tapes that had been requested almost a year before, Plaintiff
made the Appeals Council aware of several errors committed by the ALJ. R.
317, 320-25. Among the errors was that the ALJ arbitrarily chose the
onset date as the date Plaintiff first saw his psychiatrist, that the AIJ
ignored medical evidence explicitly contrary to his decision, and that
the ALJ dissected reports to obtain minor snippets of evidence contrary
to Plaintiff's position while ignoring the remainder of the evidence that
supported Plaintiff's position. R. 321, 323. Nonetheless, the Appeals
Council did not take jurisdiction over the case, and Plaintiff filed a
Complaint with this Court on February 9, 2001.
On January 7, 2002, pursuant to an agreed motion, this Court reversed
the Commissioner's final decision and remanded the case for further
administrative proceedings. This Court ordered the ALJ to conduct a de
novo review and issue a new decision considering Plaintiff's impairments
as a whole with respect to the period from Plaintiff's alleged onset
date, June 30, 1989, through March 29, 1992. The ALJ also was directed
consult a mental health professional to assist in determining Plaintiff's
disability onset date and to consider all new and old evidence of
record, specifically the opinion of Dr. Shapiro and the testimony of
Plaintiff's wife, to determine whether Plaintiff's mental impairment
might have become disabling prior to March 29, 1992.
3. The Third Proceeding
The Appeals Council remanded the case to ALJ Mondi for de novo review
of the period from June 30, 1989 through March 29, 1992, R. 555-57, The
ALJ held a hearing on October 2, 2002. R. 582-655, On February 27, 2003,
the ALJ issued an unfavorable decision, finding that Plaintiff was not
disabled prior to March 29, 1992, R, 544-54. The ALJ's decision became
the final decision of the Commissioner, and Plaintiff filed a Complaint
with this Court on May 6, 2003, requesting reversal of the Commissioner's
decision, or alternatively remand, as well as an award of attorney's fees
under the RAJA.
On October 20, 2003, Plaintiff filled a motion for summary judgment. In
response, the Commissioner filed a motion for remand. The Commissioner
proposes that, on remand, the ALJ will reconsider Plaintiff's onset date
of disability. In doing so, the ALJ will address the opinion of Dr.
Shapiro and the testimony of Plaintiff's wife, and consult a medical
expert, if necessary. Plaintiff objects, arguing that after eleven years
the record is complete and nothing new can he achieved on remand because
only one result, the award of benefits, is possible.
B. HEARING TESTIMONY
1. Plaintiff's Testimony
Plaintiff was fifty-five years old at the time of the ALJ's decision,
had completed high school, had served in the Army, and is married with
three children. R, 54, 87, 97, 282-83, 370, He injured his back on June
17, 1989, while shoveling sand as part of his duties doing carpentry
work. R. 101-06, 134, He immediately experienced pain in his back and
right leg, but continued to work. R.134, 290, By June 30, 1989, the pain
was so extreme that Plaintiff could not work. R. 128. He did not return
to work again until 1996. R. 376,
Plaintiff went to the emergency room on July 4, 1989, complaining of
pain in his right leg and lower back. R. 128. Early degenerative changes
in the lower lumbar spine were noted. R. 129. He was restricted to bed
rest and stopped working. R. 83, 128, 272. At that time, Plaintiff did
not go to a Veterans Administration hospital for treatment of his
injuries because he had been told that the hospital would only treat
war-related injuries. R. 280, 386. Additionally, at one point Plaintiff
did not see a doctor for treatment of his back for a few years because he
could not afford treatment until he began receiving public aid in 1993.
R. 278, During that time, he continued to rest and to lake
over-the-counter medicine, R. 277, 291. However, he could not do simple
chores, such as washing the dishes, and he spent about four or five hours
a day in a recliner, R. 287. He ceased repairing and building cars, as
well as doing woodworking, and could not concentrate for more than
fifteen to thirty minutes. R. 288-89, Since 1989, his back pain has been
constant. R, 615, There was no
time when his back pain first started that the pain subsided, and
the pain was so bad that his wife had to help him out of the bathtub
because he could not lift his legs over the side of the tub. R. 114-17,
611, 613. In July 1989, he realized that he would never go back to his
old lifestyle as a carpenter. R. 642, As a result, he gained about ninety
pounds since his injury, currently weighing in at about 365 pounds. R.
By September 11, 1990, Plaintiff complained of extreme back pain that,
prevented him from bending, lifting, sitting, and standing or walking for
more than thirty to forty-five minutes at a time, R, 83, 86, 88. On
February 5, 1991, Plaintiff reported that he experienced back pain
twenty-four hours a day and that he could sit only for very short periods
of time. R. 108, 110-11. The pain and depression made it difficult for
Plaintiff to remember, to concentrate, and to sleep. R. 115-16, He became
irritated when someone told him what to do or criticized him. R. 116
His mood changed for the worse after the injury. R. 391, 614.
In March 1992, Plaintiff went to sec a psychiatrist at his wife's
urging. R. 298. Because he had become suicidal and so emotionally
unstable., his wife told him that he needed to gel help or she would
divorce him. Id. When he saw the psychiatrist for the first time, he had
thoughts of guilt, worthlessness, and death. R, 644-45. The psychiatrist
prescribed Prozac, which seemed to help Plaintiff stabilize his emotions.
R. 295. Plaintiff claims that, as of 1989, his pain was severe enough to
require psychiatric treatment, R. 644.
At about the same time, in an attempt to keep himself occupied,
Plaintiff began repairing small motors, R. 238, 375, 603-04. He either
received or purchased lawn mowers
and a tractor to repair in May 1992, R. 603-04. Plaintiff asserts
that he was not running a business and that he did. not do repairs on a
daily basis because of his leg and back problems. R. 602, 607. He would
sit or lay down to do the repairs, and often he would have to take
breaks, R. 392-93, 605-07, Most of the machinery was scrapped because it
would take him six hours with breaks to do one repair that an average
mechanic could do in a third of the time. R. 606. He became frustrated
that simple tasks took hours and that he could not pick items up off the
floor. R, 607, 641,
2. Susan Roban Plaintiff's Wile
Susan Rohan ("Mrs. Rohan"), Plaintiff's wife, testified that
Plaintiff's back condition gradually grew worse since his injury in
1989. R, 305. After his injury, Plaintiff often was irritable,
depressed, and moody, had difficulty concentrating, sleeping, and
relating to others, and could not lift or carry much weight, R. 305-09,
390-91, These problems began about three months after Plaintiff stopped
working in June 1989. R. 622,
Within three or four months of Plaintiff's injury, Plaintiff became
depressed and irritable. R. 622. Plaintiff became paranoid and began
talking about his experiences in Vietnam, which he had not mentioned in
years. R. 309. Plaintiff did not undergo psychiatric treatment until
after Mrs. Rohan gave him an ultimatum that if he did not see a
psychiatrist she would move out. R, 622-23, She made the ultimatum because
Plaintiff's condition had been building gradually for a longtime until
the situation was desperate. Id. Friends stopped visiting because of
Plaintiff's attitude. R. 623.
Mrs. Rohan also testified that Plaintiff was physically exhausted by a
work hardening program he underwent in 1990 and that the program made his
pain worse. R, 624-27, After the sessions, Plaintiff would sleep for the
rest of the day and could do no more than ten to thirty minutes of
physical activity with many breaks. Id. He became more frustrated because
he could not do simple tasks, R. 625. After the work hardening program
ended, Plaintiff did not continue to receive treatment for his back
because his doctor told him that nothing could be done for it, R, 308,
Finally, Mrs. Rohan testified that Plaintiff could not accomplish
anything, especially when he attempted to fix lawn mowers, R, 626,
Plaintiff constantly would start and stop his attempts at repairs,
becoming frustrated when things would not go his way and going to bed
after about half-an-hour of work. Id.
3. Irwin Feinberg, M.D. Medical Expert
Dr. Irwin Feinberg, an orthopaedic specialist, testified at the hearing
as Plaintiff's medical expert. R. 628-46. He gave an opinion as to
Plaintiff's residual functional capacity from 1989 to 1992, R. 63 5.
Plaintiff occasionally could lift ten to fifteen pounds, frequently could
lift less than ten pounds, experienced more pain the longer he stood on
his feet or lifted with his back, could stand or walk less than two hours
and sit less than six hours in an eight-hour workday, could pull or push
with his legs, was limited on his postural positions, and could not
climb. R. 635-36. He opined that Plaintiff had met Listing 1.04(c) since
November 20, 1990, or earlier, R. 628-31, Dr. Feinberg also slated that
complaints of pain during the 1990 work hardening program were consistent
with his impairments, which were evidenced by doctors' reports and an
MRI. R. 630-33, 635-37. Specifically, Plaintiff's lumbrosacral x-rays
taken July 4, 1989, showed the first stages of disc degeneration that
could cause pain. R, 632. Finally, because Plaintiff's obesity made
surgery dangerous, Dr. Feinberg rejected the notion that Plaintiff's
refusal to have back surgery in 1989 was unreasonable and an indication
of a lack of severe pain. R. 634-35.
4. Demetri Dres, Psy.D Medical Expert
Dr. Demetri Dres, a. psychologist, testified as a medical expert, R.
574-76, 646-51, He did not examine Plaintiff but rather consulted the
medical evidence and Plaintiff's initial psychological evaluation
conducted in March 1992 by Plaintiffs psychiatrist. R. 646. Dr. Dres
could not determine when Plaintiff's depression began, but he did
determine that Plaintiff's psychological symptoms were progressive and
that the criteria for Listing 12.04 was met in March 1992. K. 638, 647.
His basis for that onset date was that it was the date Plaintiff first
visited his psychiatrist. R. 647. Whether, prior to March 1992, the
Listing was met or Plaintiffs disabling mental impairments were onset is
indeterminable with the record. R, 647-48. However, based upon the
medical evidence and the testimony, Dr. Dres opined that Plaintiff's
mental impairment likely began on October 25, 1989, while being treated
by Dr. Scott Mox. R. 648-50.
C. MEDICAL EVIDENCE
1. Treating Physicians
Plaintiff first sought treatment for his back injury on July 10, 1989,
when he visited Scott Mox, M.D., who assessed a lumbosacral strain and
severe sciatica. R. 144, 214. An MRI showed a large herniated disc, disc
protrusions, and disc degeneration, R, 145. Although surgery was an
option, Dr. Mox conservatively treated Plaintiff's condition and
physically examined him each month from July to December, R. 141-43, 256.
Dr. Mox prescribed bed rest, narcotic pain medication, and physical
therapy, which Plaintiff attended from July to September of 1989. R.
144, 214, 273. By the end of December 1989, Plaintiff had not improved
and could not return to work. R. 141.
On January 22, 1990, Thomas W. McNeill, M.D., examined Plaintiff in
connection with Plaintiff's workers compensation claim and found that the
Plaintiff had difficulty dressing, had a herniated disc with recover of
sciatica, and that the straight leg raising test was positive on the
right. R. 214-15. Although Plaintiff was at risk doing heavy work and
could extrude the herniated disc, Dr. McNeill recommended that Plaintiff
enroll in a work hardening program, which Plaintiff did in June and July
of 1990 and put forth maximal effort. R. 149-52, 215.
The work hardening program results showed that Plaintiff could do only
light work. R. 149-52. Other results show that Plaintiff's ability to
stand significantly decreased, his squatting tolerance slightly
increased, his kneeling tolerance slightly decreased, his walking
endurance moderately improved, and his ability to perform a lift
and carry remained unchanged at thirty-three pounds. R. 150-51.
2. Michael S. Shapiro, M.D. Treating Psychiatrist
On March 30, 1992, Plaintiff visited psychiatrist Dr. Michael S.
Shapiro. R. 238. At that time, Plaintiff complained of depression due to
his back injury and stated that he could not find a job, could not sit or
stand for very long, and had difficulty sleeping because of dreams about
Vietnam, Id. Dr. Shapiro diagnosed a Major Depressive Disorder. Id He
notes that the severe depression was secondary to Plaintiff's 1989 back
injury and that Plaintiff's limitations began in June 1989. R, 174, 199,
Because the objective tests showed that neurotransmittter metabolites
were at levels that indicate depression, Dr. Shapiro prescribed the
antidepressant Prozac in April 1992. R, 237, December laboratory tests
showed fluoxetine levels in a range that Dr. Shapiro described as being
in the low therapeutic range. R. 235,
On April 27, 1992, Dr. Shapiro noted that Plaintiff had started, but
neglected his studies for, an advanced level correspondence course, had
remodeled his garage, but. was otherwise inactive and had gained weight.
R. 237. In May, however, Plaintiff purchased lawn mowers to work on and
continued to neglect the correspondence course. Id. Dr. Shapiro noted
that by June 29, 1992, Plaintiff had been busy fixing lawn mowers and had
no time to rest. Id. By October 1992, Plaintiff had sold a lawn mower and
a couple of snow mobiles. R. 236.
Despite his activity fixing lawn mowers, Plaintiff's psychological
condition seemed to have worsened because Dr. Shapiro's monthly session
notes indicate mat the Prozac dosages had increased between April and
December 1992. R. 235-37. The notes record Plaintiff as being angry,
having trouble relating to others, and being unable to sleep. R. 231-37.
While seeing Dr. Shapiro, Plaintiff had physical complaints and financial
The results of a mental status examination performed on September 5,
1992, showed that Plaintiff had a flat affect, was dysphoric, and had
constricted speech. R. 175, Plaintiff's daily activities were "very
limited," he had a "constricted filed of interest," he was withdrawn, and
he was more irritable with his wife, R. 174-75. Antidepressant therapy
produced only mild improvement. R. 176. Plaintiff had limited ability to
do work-related activities because of his poor physical and mental
In late December 1992, Dr. Shapiro completed a Psychiatric Review
Technique Form and a Mental Residual Functional Capacity Evaluation. R,
200-11, 221-29. He noted mat Plaintiff had a personality disorder and was
depressed, anxious, socially dysfunctional, and deficient in his
concentration, persistence, and pace. R. 206-08, 210, 224-26, 228. At
work or in a work-like setting, Plaintiff had repeated episodes of
deterioration or decompensation. R. 210, 228. Plaintiff's ability to
handle the psychological requirements of work were generally moderately
to markedly restricted, and Dr. Shapiro believed that Plaintiff could not
handle pressure because he became angry and explosive, R. 201-02.
D. THE ALJ'S DECISION
The ALJ's decision identified the issue as whether Plaintiff was
entitled to DIB during the period from June 30, 1989, until March 29,
1992. R. 548. The decision focused on Plaintiff's mental state. R. 549.
As a. threshold matter, the ALJ addressed Plaintiff's work repairing
small machinery, Id. He found Plaintiff's "self-employment" to be
"particularly helpful in assessing his physical and mental slate, given
the size and diversity of the machinery repaired." R. 552, Contrary to
Plaintiff's testimony, which the ALJ said downplayed the work, and Dr.
Shapiro's records, the ALJ found the work to be significant, given
reports that between May 1992 and December 1993 Plaintiff purchased lawn
mowers to repair, busily fixed the mowers without time to rest, sold a
mower and a couple snow mobiles, and considered selling the business, R.
549. The ALJ noted that Plaintiff continued this work activity while
working at a convenience store in 1997, was working thirty-four hours a
week by January 21, 1998, and was doing "fix up" jobs in July 1998. Id.
Although there exist no earnings between 1989 and 1996, the ALJ pointed
to Plaintiff's earnings for 1987 to 1989 and 1996, the lack of medical
evidence, and Plaintiff's "other activities," including starting an
advance level correspondence course and remodeling his garage in April
1992, to conclude that Plaintiff did not have a severe mental impairment
or physical limitations that would preclude work existing in significant
numbers in the economy. R. 550, 552. The ALJ rejected Dr. Feinberg's
assessment that Plaintiff met Listing L.04c, stating that the evidence
was clear that Plaintiff could ambulate effectively,
which was contrary to the requirements of the Listing. R, 550. He
therefore found Dr. Feinberg's assessment not to be supported by the
medical evidence, Id. The ALJ also rejected the notion that Plaintiff
could lift up to twenty pounds occasionally and ten pounds frequently
because Plaintiff repaired machinery weighing in excess of twenty pounds.
Although dismissing Dr. Shapiro's opinion that Plaintiff's 1989 back
injury triggered his problems because it lacks support in the treatment
records, the ALJ stated that even if Dr. Shapiro's assessment was correct
it does not follow that the impairment was severe. Id. As contradictory
evidence, the AT J pointed to the fact that, prior to seeing Dr.
Shapiro, Plaintiff tailed to pursue any treatment, including the free
care available at the Veteran's Administration hospital. Id.
Furthermore, the ALJ states that Plaintiff's failure to pursue treatment
can not be justified by financial reasons because of the available free
care, and thus the reason Plaintiff did not seek care was that his
symptoms were "not of a severity to prompt him to do so." R. 552.
In furtherance of his findings, the AIJ pointed to the testimony of
Dr. Zaloudek, stating that it was not supportive of an earlier onset
date. R. 551. Additionally, the ALJ stated that the testimony of Dr. Dres
pointed to no evidence of a mental impairment prior to March 30, 1992.
Id. Claimant's own testimony in 1999 that Prozac reduces his depression,
according to the ALJ, showed that treatment ameliorated his symptoms.
Given the facts of the case, the ALJ concluded, Plaintiff was not
disabled prior to March 29, 1992, and is not entitled to DIB for the time
period at issue. R, 554. The ALJ found that Plaintiff's impairments in
combination were severe but did not meet or equal a listing and that
there was no proof that Plaintiff's limitations prevented him from
performing work because his testimony and that of his wife was not
credible, he performed other activities, and did not pursue treatment, R,
553. Consequently, the ALJ, upon reaching step five of the disability
analysis, decided that Plaintiff could not perform a. full range of light
work but could have performed jobs existing in significant numbers in the
III. LEGAL STANDARDS
A. STANDARD OF REVIEW
The "findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive."
42 U.S.C. § 405(g). An AL J's decision becomes the Commissioner's final
decision if the Appeals Council denies a request for review. Wolfe v.
Shalala, 997 F.2d 321, 322 (7th Cir. 1993). Under such circumstances, the
decision reviewed by the district court is the decision of the ALJ. Eads
v. Sec'y of the Dep't of Health & Human Servs., 983 F.2d 815, 816 (7th
Judicial review is limited to determining whether the ALJ applied the
correct legal standards in reaching his decision and whether there is
substantial evidence in the record to support the findings. Scivally v.
Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992). Substantial evidence is
"such relevant evidence as a reasonable mind might accept as adequate to
a conclusion," Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). A mere scintilla is not
enough. Id. Even if there is adequate evidence in the record to support
the decision, the findings will not be upheld if the "reasons given by
the trier of fact do not build an accurate and logical bridge between the
evidence and the result." Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.
A reviewing court may not re-evaluate the facts, re-weigh the
evidence, or substitute its own judgment for that of the Social Security
Administration, Diaz, 55 F.3d at 305-06. Thus, judicial review is limited
to determining whether the ALJ applied the correct legal standards in
reaching his decision and whether there is substantial evidence to
support the findings. Id; Scivally, 966 F.2d at 1075. The reviewing court
has the power to enter a judgment "affirming, modifying, or reversing the
decision of the [Commissioner], with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g).
B. DISABILITY STANDARD
An individual is disabled if that individual has the "inability to
engage in any substantial gainful activity by reason of any medically
determinate physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months," 42 U.S.C. § 423(d)(1)(A). However, a
disabled individual is eligible for DIB benefits only if that individual
is under a disability. Id. § 423(a). An individual is under a disability
if she is unable to do her previous
work and cannot, considering her age, education, and work experience,
partake in any gainful employment that exists in the national economy.
Id. § 423(d)(2)(A),
The Commissioner uses a five-step sequential process in order to
determine if an individual is disabled. 20 C.F.R. § 404.1520(a). The
sequential evaluation ends if the ALJ, at any step of the process, finds
that the claimant is not disabled. Id. The ALJ must inquire; (1) whether
the claimant is working in any substantial gainful activity, (2) whether
the claimant's impairment is severe, (3) whether the impairments meet or
equal a listed impairment in 20 C.F.R. pt. 404, subpt. P, Appendix 1, (4)
whether the claimant is able to perform his past relevant work, and (5)
whether the claimant's age, education, and past relevant work experience
in reference to his residual functional capacity, enables him to do other
work. Id. § 404.1520(a)(4)(i)-(v). In order to determine whether the
claimant can perform any past relevant work (step 4), the ALJ assesses
the claimant's residual functional capacity ("RFC"). Id. § 404.1520(e).
The RFC is defined as the most that an individual can do after
considering the effects of physical and mental limitations that affect
her ability to perform work-related activities. Id. § 404.1545. The
burden of proof is on the claimant through step four; the burden shifts to
the Commissioner only at. step five. Clifford v. Apfel, 227 F.3d 863, 868
(7th Cir. 2000). At step five of the disability analysis, the
Commissioner has the burden of proving that Plaintiff has the ability to
engage in other work existing in significant numbers in the national
economy. Young v. Sec'y of Health & Human Servs., 957 F.2d 386, 389 (7th
The ball game is into extra innings. It is the bottom of the eleventh
(year), there are two outs, and the Commissioner is at bat. Like the
Mighty Casey, the Commissioner has struck out. Strike one came in 1996 as
the Commissioner fouled off a pitch when the Seventh Circuit remanded the
case for further proceedings. Strike two came in 2002 when, by agreement
of the parties, this Court remanded the case for a second time, with
specific instructions for the ALJ to follow. The Commissioner was caught
looking as strike three whizzed by when she adopted as her final decision
the ALJ's decision that failed to follow the agreed upon instructions
given by this Court, The contest is now over. Judgment is entered in
favor of Plaintiff with an onset date of October 25, 1989, the
Commissioner's motion to remand is denied, and Plaintiff is awarded
attorneys fees pursuant to the EAJA.
A. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT IS GRANTED
By filing a motion to remand in response to Plaintiff's motion for
summary judgment, the Commissioner has conceded that there is no
substantial evidence to support the ALJ's decision. The Commissioner
argues that the lack of substantial evidence can be remedied by allowing
the ALJ to better articulate his finding of not disabled mdash; This
Court, however, finds not only that the ALJ's decision fails to properly
articulate its reasons but also that the Commissioner has improperly
determined the onset date of Plaintiff's disability.
In this case, the ALJ has determined that Plaintiff is disabled and
entitled to DIB as of March 30, 1992. The issue, therefore, is whether
the ALJ properly selected March 30,
1992, as opposed to any time between June 30, 1989 and March 29,
1992, as the proper onset date.
The onset date is critical, and "it is essential that, the onset date
be correctly established and supported by the evidence;' S.S.R. 83-20,
1983 WL 31249, at *1 (S.S.A. 1983). Factors relevant to the determination
of the onset date include the claimant's allegations, the claimant's work
history, and the medical evidence. Id. To be significant, the claimant's
allegations and the dale of work stoppage must be consistent with the
severity of the condition shown by the medical evidence. Id.
For disabilities of traumatic origin, the onset date is the day of the
injury if death or the inability to engage in substantial gainful
activity for at least twelve months is expected, Id at *2. For
disabilities of non-traumatic origin, the onset date must be determined
by considering the claimant's allegations, the claimant's work history,
and the medical and other evidence concerning the severity of the
Although the onset dale alleged by the claimant should be used if it is
consistent with all the evidence available, there are instances in which
inferences must be made as to whether the onset date precedes the first
recorded medical examination. Id. at *3. Inferences must have a
legitimate medical basis, and the ALJ should seek the assistance of a
medical advisor. Id. However, reasonable inferences about the progression
of an impairment may be based on information obtained from the claimant's
family members, friends, and employers. Id.
The ALJ must give convincing rationale for the onset date selected.
Id. That date should be set on the date when it is most reasonable to
conclude that the impairment was severe enough to cause death or the
inability to engage in substantial gainful activity for at least twelve
In this case, the ALJ fails to give convincing rationale for the onset
date selected and has not selected the most reasonable date. The ALJ
relies on the vocational expert's determination that the combination of
mental and physical impairments suffered by Plaintiff would prevent him
from being employable and finds that Plaintiff lacked the requisite
mental impairment that would cause him to be unemployable from June 30,
1989 to March 29, 1992. Consequently, the ALJ selected as Plaintiff's
onset date March 30, 1992, the date of Plaintiff's first visit to his
psychiatrist. Essentially, the Commissioner argues that Plaintiff's onset
date is March 30, 1992, because that is the date that Plaintiff was
diagnosed with Major Depression Disorder, no other earlier date is
consistent with the medical evidence, and other testimonial evidence does
not support any inferences needed to set an earlier onset date.
This Court finds that the onset date selected by the ALJ is entirely
arbitrary, given the record. Moreover, the ALJ's findings are tainted by
irrelevant evidence and illogical reasoning. This Court will discuss the
errors committed by the ALJ and will discuss why there are three possible
onset dates prior to March 30, 1992, from which the ALJ should have
1. Errors Committed by the ALJ
a. The ALJ Arbitrarily Selected the Onset Date
In Lichter v. Bowen, 814 F.2d 430, 435 (7th Cir. 1987), the Seventh
Circuit declared that the critical date is the onset date, not the date
of diagnosis. In Lichter, the claimant was involved in a serious
automobile accident in 1981 and suffered severe physical injuries that
caused him to stop working. Id. at 431. In 1983, the claimant was
diagnosed with a severe mental impairment by a psychologist Id. at 436.
The psychologist's report did not expressly state a date on which the
claimant first became mentally impaired, but it did indicate that the
mental impairment stemmed from the 1981 automobile accident and was of a
traumatic origin. Id. Because of the lack of medical evidence to support
1981 as the onset date, the ALJ selected the diagnosis date, 1983, as the
onset date. Id. at 435. Reasoning that the lack of medical evidence alone
is not determinative of an onset date, the court found that the ALJ's
determination of the onset date might have been different if the ALT had
applied SSR 83-20. Id. at 435-36. Under SSR 83-20, an ALJ is not permitted
to rely on the first date of diagnosis solely because no earlier
diagnosis date is available, but rather an AT J must obtain medical and
non-medical evidence. Id. at 435.
In this case, there is no medical evidence available to determine
whether Plaintiff was severely mentally impaired from June 30, 1989 to
March 29, 1992, and the ALJ did obtain non-medial evidence in the form of
testimony by Plaintiff and his wife. However, the ALJ
discredited their testimony. Nonetheless, the ALJ's selection of March
30, 1992, as the onset date rests solely upon the arbitrary reason that
it was the diagnosis date.
b. The ALJ's Credibility Determinations Are Patently Wrong
A reviewing court can not reverse an ALJ's credibility determination
unless it is patently wrong. Powers v. Apfel, 207 F.3d 431, 435 (7th
Cir. 2000). In this case, the ALJ's credibility determinations are
patently wrong because the supporting evidence upon which he relies is
irrelevant to the time period at issue. Additionally, the ALJ ignored
relevant information regarding Plaintiff's failure to seek treatment.
The ALJ explicitly states that the period at issue is June 30, 1989 to
March 29, 1992. R, 553. Inexplicably, he focuses heavily and repeatedly
upon Plaintiff's activity repairing light machinery between May 1992 and
December 1993 as "particularly helpful" evidence in assessing Plaintiff's
physical and mental stale. R. 549, 552, The ALJ can not consider evidence
of work done in mid-1992 to late 1993 to determine Plaintiff's physical
and mental state from mid-1989 to early 1992; such evidence is simply
outside the period at issue. The Seventh Circuit made this restriction
abundantly clear when it remanded this case for the first time, stating
that it was impermissible to rely upon Plaintiff's efforts at engaging in
a small machine repair/resale business to show an inconsistency with a
diagnosis of major depression and limited functional abilities. Rohan, 98
F.3d at 970. Also irrelevant for the same reason
are the correspondence course and garage remodeling project in April 1992
that the ALJ relics upon. R. 552. The ALJ improperly uses such irrelevant
evidence to discredit the testimony provided by Plaintiff and his wife.
Furthermore, the ALJ also dismisses the notion that Plaintiff can lift
up to twenty pounds occasionally and ten pounds frequently because
Plaintiff repaired machinery weighing in excess of twenty pounds. R.
551. How the ALJ came to this conclusion is unclear because there is no
evidence that Plaintiff ever lifted the machinery he repaired. Quite to
the contrary, Plaintiff testified that he either sits or lays down in
order to repair the machinery, R, 392-93, 605-07. Sitting or laying down
to repair machinery indicates that Plaintiff never lifted it,
furthermore, he never testified that he lifted the machinery but rather
testified that he could not even pick up anything that he dropped on the
ground, R. 641, Consequently, the ALJ based his decision upon
In addition to using Plaintiffs activities as discrediting evidence,
the ALJ discredits Plaintiff and his wife because Plaintiff failed to
pursue treatment for a period of time and failed to take advantage of free
services at the Veterans Administration hospital. Id. However, failure to
seek treatment is not necessarily detrimental to Plaintiff's disability
claim. See Herron v. Shalala, 19 F.3d 329, 336 (7th Cir. 1994). Indeed,
in this case, Plaintiff gave good reasons for not pursuing treatment. He
states that he received misinformation from the Veterans Administration
hospital, which told him that he could be treated only for war-related
injuries. R. 280, 386. Furthermore, he could not afford
treatment until he began receiving public aid in 1993. R. 278. During
that time, however, he continued to rest and to take over-the-counter
medicine. R. 277, 291. The ALJ errcred in failing to consider this
c. The ALJ Mischaracterized the Testimony of the Medical Experts
The ALJ also erred by relying on the testimonies of Dr. Zaloudek and
Dr. Dres as evidence that the onset date could not be earlier than the
diagnosis date. The ALJ states that Dr. Zaloudek was not supportive of an
earlier onset date and that the Dr. Dres was "hardly persuasive" because
he testified that there was no evidence of a mental impairment prior to
the diagnosis date and that Plaintiff only could have had a mental
impairment at that time. R. 551. These are mischaracterizations of the
testimony provided. In reality, Dr. Zaloudek provided no information
regarding Plaintiff's condition between June 1989 and March 1992 because
the lack of notes pertaining to that period precluded comment. R. 419,
421, Dr. Dres testified that Plaintiff's psychological symptoms were
progressive and that, based upon the medical evidence and the testimony,
Plaintiff's mental impairment likely began on October 25, 1989, R.
647-50, This testimony deserves greater weight, given the consistent
testimony by Plaintiff and his wife, which is discussed below.
As a result of these errors, this Court finds that there is no
substantial evidence to support the ALJ's decision. The ALJ did not build
a logical bridge between the facts and his conclusions. He did not
properly select an onset date.
2. Selection of Disability Onset Date Prior to the Diagnosis Date
In this case, there are three reasonably determinable onset dates prior
to the diagnosis date. Pursuant to SSR 83-20, the starting point, for
determining an onset date is claimant's alleged onset date. Nolen v.
Sullivan, 939 F.2d 516, 519 (7th Cir. 1991) (citing SSR 83-20). That date
is adjusted by considering the claimant's work history, and then adjusted
further in light of medical reports describing examinations or treatment
of the claimant. Id. Medical evidence establishing the precise onset dale
of a slowly progressing impairment, however, often is unavailable. Id. In
such cases, the onset date must be inferred based upon the medical and
other evidence that describe the history and symptomatology of the
The starting point in this case is June 30, 1989, Plaintiff's alleged
onset date. That date requires no adjustment due to work history because
it is the date Plaintiff ceased working, and he did not work again until
1996. Further adjustment is hampered because there is no medical evidence
with respect to plaintiff's mental condition until March 30, 1992,
However, Plaintiff's condition, according to Dr. Dres, is progressive,
making it necessary to infer the onset date from other evidence.
Therefore, the Court must consider lay evidence. SSR 83-20, 1983 WL
31249, at *3. To significantly impact the onset date determination, the
lay evidence must not be contrary to the medical evidence of record.
Both Plaintiff and Mrs. Rohan provide lay evidence that can assist in
the determination of the onset date. Plaintiff claims that, as of 1989,
his pain was severe enough
to cause his mental impairment, R. 644. His mood changed for the worse
after the injury. R. 391, 614. In July 1989, he realized that he would
never go back to this old lifestyle as a carpenter, and consequently
began to gain weight, became irritated easily, and had difficulty
remembering, concentrating, and sleeping. R. 115-16, 640, 642. By the
time he first saw Dr. Shapiro, he had become suicidal, was very
emotionally unstable, and had thoughts of guilt, worthlessness, and
death. R. 644-45.
Mrs. Rohan substantiates Plaintiff's testimony, claiming that about
three months after his injury, Plaintiff was irritable, very depressed,
and moody and had difficulty concentrating, sleeping, and relating to
others. R. 305-09, 390-91, 622. Plaintiff was paranoid and began talking
about his experiences in Vietnam, which he had not mentioned in years, R.
309. His inability to do simple chores frustrated him, and he could not
accomplish anything. R. 625-26, Mrs. Rohan had to give Plaintiff an
ultimatum to sec a psychiatrist because the situation had been severe and
desperate for a long time, Plaintiff was very difficult to live with, and
they were losing friends as a result of his attitude, R, 622-23.
The testimony of Plaintiff and his wife are remarkably consistent with
each other, have remained consistent over the eleven years of this
litigation, and are not contrary to the medical evidence. Indeed, three
different doctors were able to determine that the onset date was prior to
the diagnosis date. Such a determination is consistent with the nature of
Dr. Shapiro opined that the onset date was June 30, 1989. R.199, 203.
Dr. Dres opined that the onset date was October 25, 1989. R. 647-50. Dr.
Feinberg opined that the onset date was on or before November 20, 1990.
R. 628-32. October 25, 1989, is the most reasonable and consistent onset
date because of the progressive nature of the impairment and the fact
that the lay evidence demonstrates that Plaintiff did not become severely
depressed until three months after the June 1989 injury. However, because
there are three dates from which to choose and not one supportable
conclusion, such a determination is usually left up to the ALJ,
Therefore, the only question is whether to remand for further proceedings
or to automatically award benefits.
B. COMMISSIONER'S MOTION TO REMAND IS DENIED
Generally, when an ALJ's decision is not supported by substantial
evidence, a remand for further proceedings is the appropriate remedy.
Campbell v. Shalala, 988 F.2d 741, 744 (7th Cir. 1993). An award of
benefits is appropriate only if all factual issues have been resolved and
the "record can yield but one supportable conclusion," Id. In such
cases, further administrative proceedings would serve no useful purpose
but would only delay the receipt of benefits. Parks v. Sullivan,
766 F. Supp. 627, 638 (N.D. Ill. 1991). Therefore, the proper remedy for
errors is not an automatic award of benefits but rather a remand for
further proceedings. Gotz v. Barnhart, 207 F. Supp.2d 886, 903 (E.D.
However, the Commissioner does not receive "endless opportunities to
get it right." Seavey v. Barnhart, 276 F.3d 1, 13 (1st Cir. 2001); Miller
v. Chater, 99 F.3d 972, 978 (10th
Cir. 1996), A court may step in and award DIB when "the delay involved in
repeated remands has become unconscionable," Seavey, 276 F.3d at 13, or
the agency has displayed "obduracy" in complying with the law of the
case, Wilder v. Apfel, 153 F.3d 799, 804 (7th Cir. 1998).
For example, the court in Morales v. Apfel, 225 F.3d 310 (3d Cir.
2000), reversed the district court's decision to sustain the
Commissioner's denial of DIB and automatically awarded the claimant DIB
because it found ten years of delay to be unconscionable. After
determining that the ALJ improperly treated and failed to credit the
opinions of the treating and examining physicians, the court in Morales
mulled the question of whether to remand the case to the Commissioner or
to reverse the decision and award benefits. Id. at 317-18, 320. While
pondering the issue, the court noted that the ten years of litigation
included two hearings before an ALJ, two petitions to the Appeals
Council, two appeals to the district court, one concession by the
Commissioner that an ALJ decision was inadequate, and one appeal to the
court of appeals. Id. at 312, 320. Furthermore, the delays were caused by
deficiencies that were not attributable to any error of the claimant.
Id. at 320. Consequently, the court automatically awarded benefits
without remanding the case to the Commissioner for further proceedings.
Similarly, the court in Wilder v. Apfel, 153 F.3d 799 (7th Cir. 1998),
automatically awarded DIB to the claimant because of the "obduracy""
evidenced by the Social Security Administration. In Wilder, the court,
which had previously remanded the case, reviewed the
district court's decision to affirm the Commissioner's denial of
benefits, found no reasoned basis for the denial, and reversed the
district court's ruling. Id. at 804. The court did not find that the
record yielded one supportable conclusion, but rather found that the new
evidence "left the case exactly where it was the last time." Id.
Nonetheless, the court refused to remand the case to the Commissioner for
further proceedings. Id. at 801. In reaching its decision, the court
pointed to the actions of the agency. Id. at 804. The ALJ's opinion, the
court stated, was no more reasoned than the one that resulted in the
remand, contained misstatements of evidence, ignored the instructions
from the court's previous remand order, and relied on evidence not in the
record. Id. at 802-04. In order "to bring the charade to an end," the
court ordered the Commissioner to award the claimant the benefits for
which she had applied. Id. at 801.
Likewise, this case warrants an automatic award of DIB to Plaintiff
because there has been both unconscionable delay and obduracy. During the
eleven years of litigation in this case, there have been three hearings
before an ALJ, three petitions to the Appeals Council, three appeals to
the district court, two concessions by the Commissioner that ALT
decisions were inadequate, and one appeal to the court of appeals.
Furthermore, the delays in this case were caused by deficiencies that
were not attributable to Plaintiff's error. Any remand in this case would
require the case to go to a third ALJ, which would delay this case for
another year or more because the ALJ would have to review the 655 page
record and possibly conduct a new hearing in order to make credibility
determinations. Such delay is unconscionable.
Plaintiff need not "wait with the patience of Job for yet another
remand." Smith v. Califano, 637 F.2d 968, 973 n.1 (3d Cir. 1984). "Where
further administrative proceedings would simply prolong [Plaintiff's |
waiting and delay his ultimate receipt of benefits, reversal is
especially appropriate," Podedworny v. Harris, 745 F.2d 210, 223 (3d
Given the record in this case, further proceedings likely will prolong
Plaintiff's ultimate receipt of benefits. See Donahue v. Massanari,
166 F. Supp.2d 1143, 1150 (E.D. Mich. 2001) (awarding automatic benefits
on a record similar to the one in this case). Plaintiff is in his
mid-fifties, had an extensive work history, and earned good wages. His
drive to attempt to repair small machinery and the maximum effort put
forth in a, work hardening program, apparently to his detriment,
demonstrate his strong desire to work and his inability to do so.
Moreover, Plaintiff has met his burden of proving his prima facie case
because the burden of proof shifted to the Commissioner when the ALJ
reached the fifth step of the disability analysis and the record is fully
developed with respect to the period at issue. See Alien v. Bowen,
881 F.2d 37 (3d Cir. 1989) (granting an automatic award where a prima
facie case of entitlement was established, the record was fully
developed, and there was no good cause for SSA's failure to adduce alt
relevant evidence). The Commissioner has not met her burden after eleven
years, having failed to adduce substantial relevant evidence to deny
Plaintiff benefits on three separate occasions. Now she requests a fourth
to cure her defects. Even if it were possible for her to develop
such a cure, it would be "grossly unfair to give her another chance to do
so under these circumstances." Podedworny, 745 F.2d at 222.
The unconscionable delay in this case alone is sufficient to reverse
this case and award Plaintiff benefits. However, it is the obduracy in
this case that most disturbs the Court-The obduracy in this case arises
from the actions of the SSA throughout the eleven years of litigation.
For instance, the errors committed by the first ALJ were so egregious
that the Seventh Circuit not only remanded the case hut also recommended
replacing the ALJ. Despite taking the recommendation, the Commissioner
had to concede twice that the new ALJ erred. The first concession
resulted in a remand for which this Court gave specific instructions. The
need for a second concession convinces this Court that the agency
persists in its wrongdoing and refuses to get it right because it
persistently fails to follow the instructions of this Court and the Court
The Commissioner's motion for remand proposes that the ALT will address
the opinion of Dr. Shapiro and the testimony of Plaintiff's wife, and
consult a medical expert. These are the precise instructions this Court
gave on remand over two years ago. The ALJ failed to follow the
instructions then, and the Court is not convinced that the ALJ will
follow the instructions now. It is clear that the ALJ ignored the
instructions on remand and consequently reaches a decision that, like the
ALJ's decision in Wilder, is no more reasoned than the one that resulted
in the second remand of this case. As a result, the Commissioner
has run out of chances. The Court does not understand why it lakes
Plaintiff's twenty-nine page summary judgment motion to make the
Commissioner decide that now is the time to try to get it right.
Before Plaintiff filed his motion, the Appeals Council had three
chances to get it right and failed. Considering that nearly 60% of social
security cases decided by federal courts result in remands,*fn1 the
Appeals Council should take more care in determining which cases to
review. When a case, such as this one, is on its third hearing, the level
of scrutiny by the Appeals Council should be heightened so that the
parties can be sure that the SSA gels it right. Doing so saves both time
and money. The Court recognizes that the resources of the SSA are
strained by conducting nearly 500,000 hearings per year.*fn2
Nonetheless, that burden may he relieved a bit if the Appeals Council
more carefully reviewed requests for appeals to determine whether an ALJ
had committed error.
It is disturbing that the Council would not take jurisdiction over this
case even after Plaintiff submitted a memorandum of exceptions that
detailed the numerous errors committed by the ALJ. When a memorandum of
exceptions legitimately raises issues such as the
arbitrary choosing of an onset date, explicitly contrary medical
evidence being ignored, and evidence being selectively mentioned in order
to support the ALJ's decision, the Council should raise an eyebrow. Had
the Appeals Council properly reviewed the case, the second remand would
have been avoided.
Moreover, many of the same errors Plaintiff identified in the
memorandum of exceptions are the same as the errors identified in his
motion for summary judgment. Many of those errors tire identifiable with
a mere cursory glance at the ALJ's most recent decision.
The most glaring example of the errors apparent on the face of the
decision is that the ALJ used Plaintiff's alleged self-employment to find
Plaintiff ineligible for DIB. Besides being outside the time period in
question, the evidence clearly was considered impermissible by the
Seventh Circuit. Rohan, 98 F.3d at 970. That the Appeals Council
could not realize that the ALJ in this case not only relied upon
irrelevant evidence but also ignored the Seventh Circuit's instructions
Furthermore, the Appeals Council failed to realize that the ALJ's
reliance upon Plaintiff's failure to pursue treatment prior to seeing Dr.
Shapiro as evidence of a lack of a severe impairment is suspect under the
law. The Council also ignored the blatant ambiguity in the ALJ's decision
regarding the amount of weight Plaintiff can lift.
Finally, this Court is dismayed that the Appeals Council would refuse
to hear an appeal because the contentions raised by Plaintiff to the
Appeals Council were repetitive of those previously submitted to the ALJ
and addressed in the decision. R. 5, That reason
completely disregards the basic purpose of an appeal. Appeals are
necessary to review the contentions raised to and the decisions made by a
decision-maker in a lower forum. Indeed, a party waives on appeal those
issues that are not raised before the ALJ, Meanel v. Apfel, 172 F.3d 1111,
1115 (9th Cir. 1999). Therefore, the reason given by the Appeals Council
for denying review is unacceptable.
This Court finds that obduracy arises from the actions of the SSA
throughout, the eleven-year existence of this case. The combination of
the egregious errors committed by both ALJs, the refusal of the Appeals
Council to review decisions replete with mistakes, and the rubber-stamp
wielded by the Commissioner in this case shocks the conscience of the
Court. Furthermore, the eleven-year delay in this case is
unconscionable. The Commissioner's motion for remand is therefore
denied. Because of the obduracy and the unconscionable delay that are the
overtones of this case, as well as the Commissioner's failure to provide
substantial evidence*fn3 to support, her finding of not disabled,
awarded disability insurance benefits for the period from October
25, 1989 to March 29, 1992.
C. PLAINTIFF IS AWARDED ATTORNEY'S FEES PURSUANT TO THE EAJA
A prevailing party other than the United States is entitled to lees and
other expenses incurred in a civil action, unless the court finds that
the position of the United States was substantially justified or that
special circumstances make an award unjust, 28 U.S.C. § 2412(d)(1)(A).
Once a party establishes that it is the prevailing party, the burden
shifts to the government to demonstrate that its litigation position was
"substantially justified," Jackson v. Chater, 94 F.3d 274, 278 (7th Cir.
1996); Dahlmeier v. Barnhart, No. 02 C 50320, 2003 WL 22853266, at *1
(N.D. Ill. Dec. 2, 2003).
The Commissioner has no objection to Plaintiff's fee request under the
EAJA because this Court has reversed the Commissioner's decision. There
is no question as to substantial justification, and there exist no
special circumstances that make the award unjust. Plaintiff's counsel
submitted a time summary showing 18.85 hours of attorney services at
$148.00 per hour, 14.55 hours of paralegal services at $95.00 per hour,
and $150.00 in. costs, for a total of $4,322.50. These tees and costs
are more than reasonable. In addition to the time submitted, Plaintiff's
counsel estimates 10 hours of time for preparation of and argument on
this motion, equaling $1,480.00 in fees. Therefore, the Court awards
Plaintiff $5,802.50 in fees.
For the reasons set forth in this opinion, the Court enters judgment
for Plaintiff, denies the Commissioner's motion for remand, and awards
Plaintiff $5,802.50 in fees pursuant to the Equal Access to Justice Act.
The case is reversed and remanded to the Commissioner for the award of
disability benefits to Plaintiff, Donald Rohan, for the period from
October 25, 1989 to March 29, 1992.