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Bare v. Berryhill

United States District Court, S.D. Illinois

March 30, 2017

MARJORIE BARE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.[1]

          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. 28). Defendant filed a response in opposition at Doc. 31, plaintiff filed a reply at Doc. 32.

         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 (7th Cir. 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 (7thCir. 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. Id.

         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. 26.

         Plaintiff argued that the ALJ erred in determining plaintiff's credibility, the ALJ incorrectly formed plaintiff's RFC assessment, and that the ALJ's decision was not supported by substantial evidence. This Court found merit in plaintiff's credibility argument and deferred ruling on the other two 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. Simila v. Astrue, 573 F.3d 503, 516 (7th Cir. 2009). This Court concluded that the ALJ improperly associated plaintiff's daily activities with her ability to work, and that his review of the medical evidence was highly selective and undermined his findings as to plaintiff's credibility.

         This 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.

         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. 31, 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).

         2. Unre ...


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