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Kirsch v. Colvin

United States District Court, N.D. Illinois, Eastern Division

November 14, 2014

Jennifer Kirsch, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security Administration, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS M. DURKIN, District Judge.

Plaintiff Jennifer Kirsch ("Kirsch") asks the Court to grant her an award for attorney's fees under the Equal Access to Justice Act ("EAJA"), 20 U.S.C. § 2412, in the amount of $10, 719.37 and additional costs of $15.00. R. 32 at 8-9. Kirsch alleges that the position taken by the Defendant, the Commissioner of Social Security ("Commissioner"), denying her supplemental security income ("SSI") under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. § 1382c(a), and disability insurance benefits ("DIB") under Title II of the Act, 42 U.S.C. § 423(d)(2), was not "substantially justified." R. 25. Based on this Court's October 2, 2013 order granting Kirsch's motion for summary judgment and remanding the Commissioner's decision in part, Kirsch alleges she is entitled to attorney's fees pursuant to the EAJA because she is the prevailing party. R. 25 at 1. For the following reasons, Kirsch's application for attorney's fees of $10, 719.37 and additional costs of $15.00 is granted.

BACKGROUND

On May 11, 2007, Kirsch applied for SSI and DIB, claiming she became disabled on September 14, 2004. R. 24 at 1. On August 30, 2007, the Commissioner denied her applications and again denied them on reconsideration on December 18, 2007. Id. at 2. On December 2, 2009, Kirsch requested and received a hearing before an administrative law judge ("ALJ"). Id. On July 23, 2010, the ALJ issued a decision finding Kirsch not disabled. Id. On October 21, 2011, the Appeals Council denied Kirch's request for review, id., making the ALJ's decision the final decision of the Commissioner. See Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).

On December 27, 2011, Kirsch initiated a civil action before this Court for judicial review of the Commissioner's final decision. R. 1. On April 3, 2012, Kirsch filed a motion for summary judgment, which the Court granted on October 2, 2013, in part remanding the case to the ALJ. R. 14; R. 24. Specifically, the Court found that the ALJ erred in its analysis of the opinions of Dr. Kirinic and Dr. Oken, Kirsch's treating physicians. R. 24 at 11-17. The Court found that the ALJ failed to explain why parts of these opinions were rejected, and failed to apply the factors enumerated in 20 C.F.R. § 404.1527(c) and § 416.1527(c) in deciding what evidentiary weight to give to Dr. Oken's and Dr. Kirinic's opinions.[1] R. 24 at 11-17. Additionally, the Court found that the ALJ failed to consider Kirsch's treatment history, allegations of pain, and the side effects of her medications when assessing her credibility. R. 24 at 19-21.

Kirsch's motion for an award of attorney's fees as the prevailing party in the amount of $10, 719.37 and additional costs of $15.00, R. 32, is currently pending before the Court.

LEGAL STANDARD

Under the EAJA, a successful litigant against the federal government is entitled to recover reasonable attorney's fees where: (1) the plaintiff is the "prevailing party"; (2) the government's position was not "substantially justified" either in pre-litigation or litigation conduct; (3) no "special circumstances" exist which would make the award unjust; and (4) the prevailing party timely filed an application for fees within 30 days of final judgment which is supported by an itemized statement. 28 U.S.C. §§ 2412(d)(1)(A), (B); (d)(2)(A).

By virtue of the remand in this case, Kirsch is the prevailing party. Shalala v. Schaefer, 509 U.S. 292, 302 (1993). There are no "special circumstances" alleged, and Kirsch's application was timely filed and supported by an itemized statement. R. 25-3 at 1, 2. The only questions in dispute are (1) whether the Commissioner's position denying Kirsch's application for SSI and DIB was "substantially justified" and, (2) if the Commissioner's position was not substantially justified, whether the amount of attorney's fees requested by Kirsch's attorney is reasonable. R. 25 at 1, 4-5; R. 28 at 1, 4.

ANALYSIS

I. Substantial Justification

The Seventh Circuit has set forth a three-part standard for reviewing EAJA petitions. U.S. v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000). It requires the government to show that its position was grounded in: (1) a reasonable basis for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory propounded.[2] Id. Under the EAJA, the Commissioner bears the burden of proving that its position was substantially justified. Id. at 1079. The party seeking an award of attorney's fees bears the burden of proving that the fees sought are reasonable. Crawford v. Barnhart, 2002 WL 31049851, at *1 (N.D. Ill. Sept. 12, 2002). A prevailing party may obtain attorney's fees only if the government's position was not "substantially justified." 28 U.S.C. § 2412(d)(1)(A).

In making this determination, it is appropriate for the district court to consider the government's litigating position as well as its pre-litigation conduct- the action or inaction that gave rise to the litigation. Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). In doing so, the court must make a "global assessment" of the entire civil action that examines not only whether the Commissioner was justified at the beginning or the end of continuing proceedings, but also whether the Commissioner was justified at each stage. Hallmark, 200 F.3d at 1081. Because the Commissioner may have had "substantial justification" for taking or defending a position that was ultimately rejected, remand of the ALJ's opinion for lack of substantial evidence is not conclusive evidence that the Commissioner's position was not substantially justified. Cunningham v. Barnhart, 440 F.3d 862, 865 (7th Cir. 2006). However, the Commissioner's position is not substantially justified when the ALJ's opinion violates well-established precedent or the Commissioner's own regulations. Stewart v. Astrue, 561 F.3d 679, 684-85 (7th Cir. 2009). Nor is the Commissioner's position substantially justified if the ALJ mischaracterizes or ignores substantial evidence. Golembiewski v. Barnhart, 382 F.3d 721, 724-25 (7th Cir. 2004). Strong and unambiguous language pointing out errors in the ALJ's decision constitutes evidence supporting the conclusion that the Commissioner's position was not substantially justified. Id. at 725.

The Court remanded this case to the ALJ because she committed four errors in denying Kirsch's disability benefits. The Court now considers whether these errors warrant a finding that the ...


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