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Rose v. Colvin

United States District Court, S.D. Illinois

November 3, 2016

ROSALIE L. ROSE, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

          MEMORANDUM AND ORDER

          CLIFFORD J. PROUD UNITED STATES MAGISTRATE JUDGE

         This 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.

         Pursuant 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).

         This 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).

         In her 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 are unreasonable.

         1. Substantially Justified

         The 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.

         The 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.

         The 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.

         Plaintiff 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.

         This 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.

         The 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).

         The 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.

         2. Unre ...


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