The opinion of the court was delivered by: Joe Billy McDADE United States District Judge
This matter is before the Court on Plaintiff's Motion for Attorney Fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. (Doc. 17). On October 29, 2009, the Court granted, in part, Plaintiff's Motion for Summary Judgment, and remanded the matter to the Commissioner for further proceedings. (Doc. 15). Plaintiff's attorney attests that he performed 14.8 hours of work in appealing the decision of the Commissioner to the Court, and that his fees for this work are $2,599.92. Defendant has filed a Response, in which he notes that he does not oppose Plaintiff's request for attorney fees. (Doc. 19).
Under the EAJA, a district court shall award attorney's fees if "1) the claimant is a 'prevailing party'; 2) the government's position was not substantially justified; 3) no 'special circumstances make an award unjust'; and 4) the fee application is submitted to the court within 30 days of final judgment and is supported by an itemized statement." U.S. v. Hallmark Const. Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (citing 28 U.S.C. § 2412(d)(1)(A), (B); Commissioner, INS v. Jean, 496 U.S. 154, 158 (1990)). Here, Defendant does not dispute that these conditions are present.
The Court agrees that attorney's fees are proper under the EAJA. First, Plaintiff was the "prevailing party," as she obtained a remand to the Commissioner under "sentence four" of 28 U.S.C. § 405(g) ("The court shall have power to enter, upon the pleadings and transcript of the record, a judgment.reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.").*fn1 Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993). Second, Plaintiff has alleged that the Commissioner's position was not "substantially justified." The Court finds that Defendant's failure to submit evidence that his position was substantially justified is an admission that it was not. Libas, Ltd. v. U.S., 314 F.3d 1362, 1364 (Fed. Cir. 2003). "The burden of establishing 'that the position of the United States was substantially justified,' § 2412(d)(1)(A) indicates and courts uniformly have recognized, must be shouldered by the Government." Scarborough v. Principi, 541 U.S. 401, 414-15 (2004) (citing Pierce v. Underwood, 487 U.S. 552, 567, 575 (1988); Davidson v. Veneman, 317 F.3d 503, 506 (5th Cir. 2003); Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003); Libas, Ltd., 314 F.3d at 1365; H.R.Rep. No. 96-1005, at 10. See also Hallmark Const. Co., 200 F.3d at 1079 ("the government bears the burden of proving that its position meets the substantially justified standard"). Where the government has put on no evidence or argument that its position was "substantially justified," it cannot be said that it has carried this burden.*fn2 Further, no special circumstances rendering an award unjust have been identified, and the Court finds none. Finally, Plaintiff's Motion for EAJA fees was timely filed on December 2, 2009 and was accompanied by an itemized statement.*fn3
Plaintiff submits that her attorney did 14.8 hours of work in appealing the Commissioner's decision to this Court, and seeks fees for this work at the rate of $175.67 per hour, arguing that increases in the cost of living justify a higher rate than that set by statute.*fn4 It is the plaintiff's burden to show that fees sought are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Under 28 U.S.C. § 2412(d)(2)(A), the attorney-fee rate is $125 per hour, unless the Court determines that an increase in the rate is appropriate because of an increase in the cost of living. The Seventh Circuit held in 2008 that, "given the passage of time since the establishment of the hourly rate [in 1996], a cost-of-living adjustment is warranted." Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008) (approving a $161.85 rate for work done in 2006). As noted above, Defendant challenges neither Plaintiff's claimed rate nor the time expended. The Court finds that the increase in the cost of living justifies an hourly rate of $175.67.*fn5 See McDaniel v. Astrue, 07-cv-642-SEB-TAB, 2009 WL 2762720, *2 (S.D. Ind. Aug. 25, 2009) (approving $171.53 for work done in 2008); Simms v. Astrue, 08-cv-00094-PRC2009 WL 1659809, *7 (N.D. Ind. June 12, 2009) (approving $172.38 for work done in 2008); Evans v. Astrue, 07-cv-290, 2008 WL 5235993, *8 (N.D. Ind. Dec. 12, 2008) (approving $171.25 for work done in 2008).
The Court approves the majority of Plaintiff's attorney's hours spent on this case, as listed in the Itemization of Hours. (Doc. 17-2). However, Plaintiff's Itemization of Hours includes two entries that are not appropriately included in this case. On May 13, 2009, her attorney apparently spent .5 hours reviewing the "Commissioner's Motion to Reverse and Remand." The Commissioner's May 12, 2009, Motion was for Summary Affirmance, not for reversal of his decision. In addition, on October 29, 2009, he appears to have spent .3 hours reviewing this Court's "Order granting Defendant's Unresisted Motion to Remand." The Court's October 29, 2009 Order granted, in part, Plaintiff's Motion for Summary Judgment, and denied the Commissioner's Motion for Summary Judgment. Therefore, the Court subtracts the time for these two activities (.8 hours), as they could not have occurred in this case. Plaintiff is entitled to attorney's fees for 14 hours of work by her attorney at the rate of $175.67.
IT IS THEREFORE ORDERED that Plaintiff's Motion for Attorney Fees under the EAJA (Doc. 17) is GRANTED. The Court awards Plaintiff $2,459.38 in attorney's fees. The Clerk is DIRECTED to prepare an amended judgment to this effect.
Entered this 14th day of ...