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Price v. Berryhill

United States District Court, S.D. Illinois

April 7, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. [1]



         This matter is before the Court on plaintiff's Motion for Attorney's Fees Under the Equal Access to Justice Act. (Doc. 47). Defendant filed a response in opposition at Doc. 50 and plaintiff filed a reply at Doc. 53.

         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).

         In July 2015 the Seventh Circuit reversed this Court's order affirming the ALJ's decision and directed the Court to remand this case for further administrative proceedings. Doc. 45. 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 (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.

         Plaintiff's history and the specifics of the ALJ's decision are discussed in detail in the opinion written by the Seventh Circuit in Price v. Colvin, 794 F.3d 836 (7th Cir. 2015). The Seventh Circuit found that plaintiff's history created a presumption he would have continued to receive benefits had he not been sent to prison. Id. at 837. They also noted that plaintiff's combined intellectual problems and psychiatric abnormalities were consistent with rendering a person so afflicted incapable of gainful employment. Id. at 839. Judge Posner made it clear that the reasons given for finding plaintiff to be capable of gainful employment were “unconvincing.” Id. at 839.

         The Commissioner argues that the fact that this Court found that the ALJ's decision was reasonable initially serves as prima facie evidence that a reasonable person would also find her position to be reasonable. Doc. 47, p. 3. However, Judge Posner notably disagreed with the idea that there was substantial justification in the ALJ's reasoning when he stated the “unavoidable conclusion” was “that the judgment of the district court must be . . . reversed.” Price, 794 at 841. As plaintiff notes in his EAJA brief, the appellate court excoriated the ALJ's decision, noting that facts were cherry picked, the ALJ had several instances within his opinion that lacked evidentiary support, and that there was an absence of logical bases for several conclusions. This is not indicative of a substantially justified position.

         Further, if the Commissioner's arguments were correct any party that advanced appeals to the Appeals Court and won at that level could not be granted fees. This is illogical. As the Seventh Circuit has stated, “if it is apparent from our opinion that we think the government lacked a substantial justification for its position, though the judge had thought it not only substantially justified but correct, he must bow. Golembiewski v.Barnhart, 382 F.3d 721, 724-25 (7th Cir.2004); Friends of Boundary Waters Wilderness v. Thomas, supra, 53 F.3d at 885-86.” United States v. Thouvenot, Wade & Moerschen, Inc., 596 F.3d 378, 384 (7th Cir. 2010).

         The Commissioner fails to advance arguments that show her position was substantially justified as a whole. Gatimi v. Holder, 606 F.3d 344, 349-50 (7th Cir. 2010). She does not indicate how she had a rational ground for her arguments outside of this Court's initial review of the case. Therefore, the Court finds that plaintiff is entitled to an award of attorney's fees under the EAJA.

         2. Unre ...

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