United States District Court, S.D. Illinois
KYLE R. COLEMAN, 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. 28). Defendant filed a response in opposition at Doc.
32, plaintiff filed a reply at Doc. 33 and supplemented his
response at Doc. 35.
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. 26.
argued that the ALJ failed to consider and evaluate important
medical evidence, the ALJ's credibility determination was
erroneous, the ALJ erred in determining plaintiff's RFC,
and the ALJ erred in not giving appropriate weight to the
opinions of his primary care physician. This Court found
merit in all four of plaintiff's arguments.
Court concluded that the ALJ's review of the medical
evidence was highly selective and undermined his findings as
to plaintiff's credibility, the weight he afforded
plaintiff's treating physician, and his ultimate findings
as to plaintiff's RFC. 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).
Court recognized that the Commissioner's arguments in
this case were perfunctory. 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.
Commissioner argues that both the hourly rate and the number
of hours ...