United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
IAIN D. JOHNSTON, District Judge.
On December 6, 2012, Alton Jones, ("Plaintiff") filed an action seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application to recover Supplemental Security Income ("SSI") under Title IX of the Social Security Act. 42 U.S.C. § 1382c(a)(3)(C). (Dkt. #1). On February 6, 2014, this Court remanded the case to the Administrative Law Judge ("ALJ") for further evaluation. Jones v. Colvin, No. 12 C 50438, 2014 WL 467744, at *14 (N.D. Ill. Feb. 6, 2014); (Dkt. # 26). Plaintiff now seeks to recover his attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). (Dkt. #28).
In his fee petition, Plaintiff argues he is entitled to a fee award under the EAJA because the Commissioner's position in defending the ALJ's decision was not "substantially justified." Plaintiff claims he is entitled to an increase from the statutory rate of $125.00 per hour because of an increase in the cost of living and a "special factor" within the meaning of § 2412(d)(2)(A). (Dkt. #28). The Commissioner opposes Plaintiff's fee petition in its entirety. She contends Plaintiff is not entitled to fees because her position was substantially justified. (Dkt. #37). Alternatively, the Commissioner argues if Plaintiff is entitled to fees, then his fees should be awarded directly to Plaintiff and not Plaintiff's counsel. Finally, the Commissioner contends that Plaintiff's fees should be reduced if the Court finds any award is appropriate. (Dkt. #37).
For the reasons set forth below, the Court rejects the Commissioner's arguments and grants Plaintiff's fee petition under the EAJA. (Dkt. #28). The Court awards Plaintiff $8, 422.87.
Plaintiff filed an application for disability on July 30, 2009, alleging a disability onset date of May 31, 2005. (Dkt. #7-6 at 2-11; R. 145-154). On November 18, 2009, the application was initially denied, and was denied upon reconsideration on April 12, 2010. (Dkt. # 7-5 at 3-10; 16-21; R. 67-74; 80-85). On May 17, 2010, Plaintiff filed a request for a hearing. (Dkt. #7-3 at 23; R. 22). The ALJ granted Plaintiff's request and conducted a hearing on April 5, 2011 in Oak Brook, Illinois. Id. Plaintiff and Vocational Expert ("VE") Cheryl R. Hosieth testified at the hearing. (Dkt.#7-3 at 42-62; R. 41-61). During Ms. Hosieth's testimony, the ALJ posed her a hypothetical. The ALJ asked Ms. Hosieth whether jobs were available for an individual like Plaintiff "who should come in no contact with the public for work-related purposes, but can come in occasional contact with coworkers and supervisors... and would be limited to unskilled, three - to four - step, simple, repetitive, routine tasks." (Dkt.# 7-3 at 58-60; R. 57-59). Ms. Hosieth answered affirmatively and stated that such an individual could work as a janitor, hand packager, or hospital food service worker. (Dkt. #7-3 at 59; R. 58).
On May 25, 2011, the ALJ issued a decision denying Plaintiff's claim for benefits. (Dkt.# 7-3 at 23-34; R. 22-33). In the opinion, the ALJ concluded that Plaintiff had not engaged in substantial gainful activity since the onset of his alleged disability and concluded that Plaintiff had the severe impairments of major depressive disorder; explosive disorder; posttraumatic stress disorder; and a history of alcohol and marijuana abuse. (Dkt.# 7-3 at 25; R. 24). However, the ALJ determined these impairments did not meet or equal one of the listed impairments in 20 C.F.R. Part 404 Subpart P, Appendix 1. (Dkt. #7-3 at 26; R. 25). Instead, the ALJ determined Plaintiff had a residual functional capacity "to perform a full range of work at all exertional levels" with certain limitations. (Dkt.# 7-3 at 26-27; R. 25-26). Considering Plaintiff's age, work experience, medical conditions, and RFC finding, the ALJ found there were a number of jobs in the economy that Plaintiff could perform. (Dkt. #7-3 at 32-33; R. 31-32). Consequently, the ALJ determined Plaintiff was not disabled and not entitled to Social Security Benefits. (Dkt. #7-3 at 33; R. 32).
Shortly after the ALJ issued the opinion, Plaintiff requested that the Appeals Council review the decision. However, on February 8, 2011, the Appeals Council denied the review, thereby making the ALJ's decision final. (Dkt. #7-3 at 2-7; R. 1-6); 20 C.F.R. § 404.927. Subsequently, Plaintiff filed an appeal in this Court pursuant to 42 U.S.C. §405(g). (Dkt. #1). After filing the appeal, both Plaintiff and the Commissioner filed cross motions for summary judgment. (Dkts. # 8; 17). On February 6, 2014, this Court denied the Commissioner's motion, granted Plaintiff's motion, and remanded the matter for reconsideration. (Dkt. # 26). In the Court's opinion, it determined that remand was necessary because the ALJ failed to present the VE with a complete and accurate hypothetical. Specifically, the Court held that the ALJ failed to include Plaintiff's limitations in concentration, pace and persistence in the hypothetical. (Dkt. #26 at 26-30). As the prevailing party, Plaintiff timely moved for an award of attorney's fees under the EAJA. (Dkt. #28).
II. LEGAL STANDARD
The EAJA states that "a court may award reasonable fees and expenses of attorneys... to the prevailing party in any civil action brought by or against the United States or any agency." 28 U.S.C. § 2412(b). Under the EAJA, a plaintiff is eligible to recover attorneys' fees if: (1) he makes a timely application for fees; (2) he is a "prevailing party"; (3) the Government's position was not "substantially justified"; and (4) no special circumstances makes an award unjust. 28 U.S.C. § 2412(d)(1)(A)-(B); Comm'r, INS v. Jean, 496 U.S. 154, 155 (1990); Scott v. Astrue , No. 08 C 5882, 2012 WL 527523, at *1 (N.D. Ill. Feb. 16, 2012).
Fees and expenses can be awarded if the Commissioner's pre-litigation conduct or litigation position lacked substantial justification. Cunningham v. Barhnhart, 440 F.3d 862, 863 (7th Cir. 2006). The Seventh Circuit has held that a position taken by the Commissioner is substantially justified if it has a "reasonable basis in fact and law, and if there is a reasonable connection between the facts and the legal theory." Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988); Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006)). It therefore follows that a loss on the merits does not automatically result in a finding that the Commissioner's position was not substantially justified. Underwood, 487 U.S. at 569. Instead, the Court must assess the Commissioner's conduct as a whole and determine whether the Commissioner has satisfied her burden of establishing that her litigation position and pre-litigation conduct had a reasonable basis in fact and law. Stewart, 561 F.3d at 683; Cunningham, 440 F.3d at 863.
A. Contention of the Parties
In this case, Plaintiff argues he is entitled to fees because he can satisfy all of the requisite elements under the EAJA. He contends the Commissioner cannot establish that her litigation position was substantially justified because she failed to follow "clearly established statutory and court precedent." (Dkt. #28 at 3 (citing Underwood, 487 U.S. at 561-62)). In his fee petition, Plaintiff seeks an increase from the statutory hourly rate of $125.00 to account for inflation and cost of living increases. (Dkt. #28 at 4). In ...