United States District Court, N.D. Illinois, Western Division
MEMORANDUM OPINION AND ORDER
IAIN D. JOHNSTON, Magistrate Judge.
Plaintiff's motion for attorney's fees (Dkt. 23) under the Equal Access to Justice Act is granted in part. For the reasons set forth below, the Court awards $8, 425.67 in fees and costs.
In June 2013, Plaintiff, Joseph Rankin, filed this action, challenging the March 2012, decision of the Administrative Law Judge ("ALJ") denying his application for disability benefits based on his cerebral palsy. On December 17, 2014, this Court ultimately remanded the case to the Social Security Administration for further proceedings. Rankin v. Colvin, No. 13 CV 50197, 2014 U.S. Dist. LEXIS 173821 (N.D. Ill.Dec. 17, 2014).
As a result of this Court's decision to remand, Plaintiff now seeks to recover his attorney's fees and costs in the amount of $9, 739.42, pursuant to the Equal Access to Justice Act ("EAJA"). 28 U.S.C. § 2412(d). Plaintiff argues he is entitled to fees and costs because the Commissioner's position was not substantially justified. Plaintiff also contends he is entitled to recover attorney's fees above the statutory rate of $125 per hour because of an increase in the cost of living. The Commissioner opposes the fee request, maintaining that its position was substantially justified. The Commissioner further argues that the hourly rate and the number of hours requested are unreasonable and not justified.
II. LEGAL STANDARD
Under the EAJA, a plaintiff is eligible to recover attorney's fees if: (1) he is the prevailing party; (2) the government's position was not substantially justified; (3) no special circumstances make an award unjust; and (4) he filed a timely and complete fee application. 28 U.S.C. § 2412(d)(1)(A), (B); Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). A claimant is entitled to an award of fees and expenses 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 burden is on the Commissioner to establish substantial justification. Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). The Commissioner's position 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." Id. (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. Substantially Justified
The basis for remanding this case was because the ALJ failed to apply the treating physician rule. In the ALJ's analysis, which consisted of only seven paragraphs, she rejected the opinion of Plaintiff's long-time treating physician, Dr. Harry Darland, that Plaintiff stopped working in 1996 because of his severe debility associated with cerebral palsy and due to pain and stiffness in his muscles and joints. R. 22-23, 379. The ALJ acknowledged that this was the opinion of a treating source, but rejected it because "there is not enough evidence that would support the opinion of the doctor for the period prior to December 1997." R. 22-23. This is the only explanation the ALJ provided to support her decision.
The regulations provide that a treating physician's opinion is entitled to controlling weight if it is supported by medical findings and consistent with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); Moore v. Colvin, 743 F.3d 1118, 1127 (7th Cir. 2014). If an ALJ does not give a treating physician's opinion controlling weight, he must determine what specific weight, if any, the opinions should be given after analyzing the checklist of factors set forth in the Social Security regulations. 20 C.F.R. § 404.1527(c)(2) (requiring "good reasons" for not giving controlling weight to a treating source's opinion); Campbell v. Astrue, 627 F.3d 299, 308 (7th Cir. 2010) (referring to the factors as a "required checklist").
Here, the ALJ rejected Dr. Darland's opinion, but, contrary to § 404.1527(c)(2), did not apply the required checklist or give good reasons to justify her conclusion. Specifically, this Court took issue with the fact that the ALJ failed to acknowledge evidence that Dr. Darland's treating relationship with Plaintiff was "long-term, close, and ongoing, " despite evidence suggesting that Plaintiff treated with Dr. Darland on a regular basis since the 1970s. Rankin, 2014 U.S. Dist. LEXIS 173821, at *9-10. The ALJ also determined that Plaintiff had the ability to perform a full range of sedentary work, but failed to address Dr. Darland's conclusions that Plaintiff's limitations with the fine motors skills in his hands and arms precluded him from any type of work. Id. at *10. Moreover, this Court found the Commissioner's harmless error argument without merit due to the "complete lack of explanation by the ALJ, " and because the Commissioner relied "on evidence never discussed by the ALJ." Id. at *11-12.
In opposing this fee petition, the Commissioner continues to maintain that her position was substantially justified. She argues that the ALJ merely failed to articulate her reasons for rejecting Dr. Darlan's opinion, noting that the record contains "very little contemporaneous evidence that supported Dr. Darland's opinions about Plaintiff's ability to work in the distant past." Dkt. 28 at 3. Nevertheless, the regulations clearly require the ALJ to apply the checklist and provide good reasons for rejecting a treating sources opinion. See 20 C.F.R. § 404.1527(c)(2). The Seventh Circuit has emphasized the importance for ALJs to consider these factors when determining what weight to give the opinion. See Campbell, 627 F.3d at 308; Larson v. Astrue, 615 F.3d 744, 751 (7th Cir. 2010); Moss v. Astrue, 555 F.3d 556, 561 (7th Cir. 2009). Therefore, the Commissioner cannot now cure the ALJ's error to follow the treating physician rule by evaluating the evidence in the record and concluding that there was little evidence to support Dr. Darland's opinion. See Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) ("[G]eneral principles of administrative law preclude Commissioner's lawyers from advancing grounds of the agency's decision that were not given by the ALJ.") (citation and quotation marks omitted).
The Commissioner relies on McFadden v. Astrue, 465 F.App'x 557 (7th Cir. 2012), to support her harmless error argument. This Court finds McFadden distinguishable. The Court in McFadden determined that any error by the ALJ in not addressing the plaintiff's treating physician's opinion was harmless because the opinion did not identify any objective medical findings on which it was based. Id. at 560. However, the court went on to state that the ALJ's residual functional capacity findings incorporated the postural limitations addressed by the treating physician and were supported by the ...