United States District Court, S.D. Illinois
ROSALIE L. ROSE, Plaintiff,
CAROLYN W. COLVIN, Defendant.
MEMORANDUM AND ORDER
CLIFFORD J. PROUD UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act.
(Doc. 29). Defendant filed a response in opposition at Doc.
31 and plaintiff filed a reply at Doc. 33.
to the Equal Access to Justice Act, 28 U.S.C.
§2412(d)(1)(A), the Court shall award attorney's
fees and expenses to a prevailing party in a civil action
against the United States, including proceedings for judicial
review of agency action, unless the government's position
was substantially justified. The hourly rate for
attorney's fees is not to exceed $125.00 per hour
“unless the court determines that an increase in the
cost of living or a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved, justifies a higher fee.” §2412(d)(2)(A).
case was remanded to the Commissioner for further proceedings
pursuant to sentence four of 42 U.S.C. §405(g).
Plaintiff is, therefore, the prevailing party. See,
Shalala v. Schaefer, 509 U.S. 292, 302 (1993).
response to the motion, the Commissioner argues the Court
should not award fees because the government's position
was substantially justified and plaintiff's fees sought
EAJA does not define the term “substantially justified,
” and the Seventh Circuit has recognized that its
meaning in this context is not “self-evident.”
U.S. v. Thouvenot, Wade & Moerschen, Inc., 596
F.3d 378, 381 (7thCir. 2010). However, in view of
the purpose of the Act, substantially justified means
something more than “not frivolous;” the
government's position “must have sufficient merit
to negate an inference that the government was coming down on
its small opponent in a careless and oppressive
fashion.” Id., at 381-382.
government's position is substantially justified where it
had a “reasonable basis in law and fact, that is, if a
reasonable person could believe the position was
correct.” Golembiewski v. Barnhart, 382 F.3d
721, 724 (7th Cir. 2004)(internal citations
omitted). The Commissioner bears the burden of demonstrating
that her position was substantially justified, and the Court
must make a determination based on an assessment of both the
government's pre-litigation and litigation conduct,
including the decision of the ALJ. Ibid.
evidence in the administrative record and the specifics of
the ALJ's decision are discussed in detail in the
Memorandum and Order remanding the case, Doc. 27.
argued that the ALJ failed to include all of plaintiff's
mental limitations in the hypothetical question posed to the
vocational expert, the ALJ incorrectly weighed the opinion of
plaintiff's treating physician, the assessment of
plaintiff's credibility was erroneous, and the ALJ
ignored evidence that supported plaintiff's claim. This
Court found merit in plaintiff's first point and deferred
ruling on the other three points.
Court concluded that the ALJ failed to build “an
‘accurate and logical bridge' between the evidence
of mental impairments and the hypothetical and the mental
RFC, ” and that such failure requires remand. Yurt
v. Colvin, 758 F.3d 850, 858-59 (7th Cir. 2014). This
Court noted that both plaintiff and the Commissioner's
briefs were inadequate as neither cited the most relevant
binding precedent, O'Connor-Spinner v. Astrue,
within their briefs. 627 F.3d 614 (7th Cir. 2010). The ALJ
asked a series of hypothetical questions to the vocational
expert and failed to address plaintiff's limitations in
concentration, persistence, or pace. The Commissioner argued
that the ALJ did not need to address the finding that
plaintiff had a deficiency in concentration, persistence, or
pace and in doing so cited a Third Circuit opinion, and two
non-binding opinions from district courts.
Commissioner characterizes the ALJ's errors “errors
of articulation” and argues they do not necessitate a
finding that the government's position was not
substantially justified, Doc.32, p. 4. The Commissioner cites
Stein v. Sullivan, 966 F.2d 317, 319-320
(7th Cir. 1992), in support of this argument.
However, Stein did not establish a per se
rule that attorney's fees will not be awarded whenever
the error was a failure to meet the articulation requirement.
See, Conrad v. Barnhart, 434 F.3d 987, 991
(7th Cir. 2006).
Commissioner's argument that she was reasonable for not
citing O'Connor-Spinner because other district
courts found an ALJ's hypothetical sufficient and the
case at hand is distinguishable is not well taken. The Court
here found the binding precedent of
O'Connor-Spinner applicable and recognized that
the Commissioner's arguments were unavailing and
deficient. It is now difficult to accept her argument that
her position was substantially justified when she failed to
justify it in her merits brief. The Court finds that the
Commissioner's position was not substantially justified,
and therefore finds that plaintiff is entitled to an award of
attorney's fees under the EAJA.