United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
PAUL R. CHERRY, Magistrate Judge.
This matter is before the Court on Plaintiff's [ ] Motion for Attorney's Fees Under the Equal Access to Justice Act [DE 27], filed on May 1, 2015. The motion became fully briefed on May 20, 2015.
After a final decision by the Agency that Plaintiff Cedric Brown was not disabled, Plaintiff filed an appeal with this Court. This Court issued an Opinion and Order on February 3, 2015, reversing the Commissioner's decision to deny benefits and remanding this case for further consideration. Plaintiff now asks for attorney fees under the Equal Access to Justice Act ("EAJA").
The EAJA allows a prevailing plaintiff to recoup reasonable attorney fees if (1) the Plaintiff was the prevailing party; (2) the Commissioner's position was not substantially justified; (3) there are no special circumstances that make an award unjust; and (4) the fee application was timely and supported by an itemized statement. United States v. Hallmark Constr. Co., 200 F.3d 1076, 1078-79 (7th Cir. 2000) (citing 28 U.S.C. § 2412(d)(1)(A), (B); Commissioner, I.N.S. v. Jean, 496 U.S. 154, 154 (1990)). In this case, the Commissioner opposes Plaintiff's request for EAJA fees, arguing that her position was substantially justified.
Although the EAJA does not define "substantially justified, " the United States Supreme Court defined the term to mean "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988); see also Golembiewski, 382 F.3d at 724. The Court must consider whether the Commissioner's "position was grounded in: (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced." Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (citing Hallmark Constr., 200 F.3d at 1080). The substantial justification standard is different than the substantial evidence standard, which is used to evaluate the merits of a claimant's request for remand. See Pierce, 487 U.S. at 568-69. Thus, a loss on the merits does not automatically constitute a lack of substantial justification. See id. at 569. The Commissioner bears the burden of proof in showing that the litigation position was substantially justified. See Pierce, 487 U.S. at 565; Golembiewski, 382 F.3d at 724.
In considering substantial justification, the Court is to analyze the "position of the United States, " which refers to the conduct of the Commissioner throughout the civil action, including prelitigation conduct. 28 U.S.C. § 2412(d)(2)(D); Golembiewski, 382 F.3d at 724; Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The Court must undertake a global analysis of the Commissioner's position because whether that position was substantially justified will rarely be decided by a single issue. See Hallmark Constr., 200 F.3d at 1080.
In the instant case, the Court remanded because the ALJ failed to resolve an inconsistency between findings of significant limitation in lumbar spine range of motion, the consultative examiner's opinion that Plaintiff was "unable" to stoop, Plaintiff's testimony that he cannot bend at the waist or squat, and the ALJ's finding that Plaintiff could stoop occasionally. As explained in the Court's Order, in both Thomas v. Colvin, 534 F.Appx. 546, 551 (7th Cir. 2013), and Golembiewski, 322 F.3d at 917, remand was required because the ALJ failed to resolve inconsistencies between a consultative examiner's report of limited flexion in the back and the opinion of another physician regarding an ability to stoop occasionally. The Court noted that the error in this case was more egregious than those in Thomas and Golembiewski because the consultative examiner found not only decreased flexion of 30 degrees but also made an explicit finding that Plaintiff was "unable to stoop and squat." (AR 330). The ALJ ignored that finding. The ALJ also mistakenly reported that Plaintiff was able to get on and off the examination table without difficulty. The Court noted that there was no evidence of record that Plaintiff could stoop.
This is not a close case. Given the decisions of the Seventh Circuit Court of Appeals in Thomas and Golembiewski, the ALJ's failure to resolve inconsistencies regarding stooping, especially in a case in which the evidence from the consultative examiner was not only a limited degree of flexion but also a finding of an inability to stoop, reasonable minds could not differ and the Commissioner's position was not substantially justified. Notably, the Commissioner did not make a cogent argument in her litigation brief on appeal to this Court to support the ALJ's analysis of Plaintiff's ability to stoop and, in fact, erred by asserting that Dr. Smejkal never said that Plaintiff could not stoop. This is not a failure to articulate case or a failure to connect the dots case, as are many of the cases cited by the Commissioner in her brief in opposition to the instant motion. Rather, this is a failure to consider evidence contrary to the RFC. Although the Court only remanded on this issue and found that remand based on Plaintiff's other arguments was not warranted, the proper consideration is justification for the Commissioner's overall position and not for the Plaintiff's position. Stewart v. Astrue, 561 F.3d 679, 683-84 (7th Cir. 2009); Hallmark Constr., 200 F.3d at 1081; Taloff v. Colvin, No. 12cv1696, 2014 WL 868040, at *2 (N.D. Ill. Mar. 5, 2014). The Court finds that the Commissioner's position was not substantially justified based on this issue.
Because Plaintiff was the prevailing party, the Commissioner's position was not substantially justified, there are no special circumstances that make an award unjust, the fee application was timely and supported by an itemized statement, and Plaintiff has sufficiently established the requested market rate for EAJA purposes, the Court hereby GRANTS Plaintiff's [ ] Motion for Attorney's Fees Under the Equal Access to Justice Act [DE 27], including the request for fees incurred in drafting the reply brief, and AWARDS Plaintiff $7, 151.87 in attorney fees and costs. The Agency will direct the ...