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Bianco v. Colvin

United States District Court, N.D. Indiana

May 29, 2015

TRINA BIANCO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


WILLIAM C. LEE, District Judge.

This matter is before the court on a "Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act", filed by the plaintiff, Trina Bianco, on March 30, 2015. The defendant, Carolyn W. Colvin, Acting Commissioner of Social Security, filed her response on April 13, 2015, to which the plaintiff replied on April 27, 2015.

For the following reasons, the motion will be granted.


In her motion for attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), plaintiff claims that she is entitled to receive attorney fees because she is the prevailing party in this action under Shalala v. Schaefer, 509 U.S. 292, 302-303 (1993); is an individual whose net worth did not exceed two million dollars at the time the action was filed as is demonstrated by plaintiff's affidavit; and the position of the United States in this litigation was not substantially justified. The burden of proof on the issue of substantial justification is on the government. In the present case, this Court found that the ALJ failed to thoroughly consider evidence regarding carpal tunnel syndrome. The Court also ordered remand "for further review of Dr. Lochner's opinion." Plaintiff asserts that there are no special circumstances in this case that make an award under the EAJA unjust. This motion is supported by an affidavit of plaintiff's attorney (Exhibit A), a log of hours performed in this case (Exhibit B), a table of yearly Producer Price Index ("PPI") increases (Exhibit C), a table of yearly Consumer Price Index ("CPI") increases (Exhibit D), a biography of plaintiff's attorney (Exhibit E), an affidavit from plaintiff's attorney's law firm's controller regarding the effects of inflation (Exhibit F), and plaintiff's assignment of her EAJA interest to her attorney (Exhibit G). Plaintiff argues that, taken together, this data supports the requested enhanced hourly rate by demonstrating that inflation has increased the cost of providing legal services to those with claims against the government.

According to the affidavit of Attorney Timothy E. Burns, his regular non-contingent hourly rate is $250.00. Burns further states that in 2013 he spent 1.2 hours on this case, and in 2014, he spent 34.3 hours on this case. Further, non-attorney staff spent 1.9 hours of work on the case in 2014. Burns has also informed the court that he spent an additional 6.8 hours responding to the Commissioner's opposition to this motion. Burns requests an hourly rate in accordance with the applicable statute adjusted due to the increase in cost of providing legal services and prevailing market rates. For civil actions commenced on and after March 29, 1996, $125 per hour is the EAJA's statutory rate. 28 U.S.C. § 2412(d)(2)(A). Burns avers that the EAJA rate must be supplemented due to the more current costs and current rates charged by attorneys in the area. Burns is seeking an hourly rate of $183.13 for work performed in 2013, and an hourly rate of $185.62 for work performed in 2014 and 2015. Further, Burns is seeking $100.00 per hour for non-attorney time spent on the case. Burns is thus seeking a total of $8038.75 as EAJA fees.

The EAJA provides that a prevailing party in litigation against the United States Government may recoup an award of attorney fees and other expenses if, among other conditions, the position of the Government was not "substantially justified." 28 U.S.C. § 2412(d)(1)(A); Conrad v. Barnhart, 434 F.3d 987, 989 (7th Cir. 2006). Clarifying the EAJA standard, the Supreme Court held that a position is substantially justified when it is "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565-66 (1988). The Supreme Court further noted that "a position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Id. at 566 n.2. The standard is considered satisfied if a "genuine dispute" exists. Id. at 565.

By including the substantial justification standard in the EAJA, Congress made clear that it did not intend that prevailing parties would automatically recover attorney fees. Potdar v. Holder, 585 F.3d 317, 319 (7th Cir. 2009) ("The EAJA is not an automatic fee-shifting statute in favor of litigants who prevail against the government.'") (quoting Zapon v. U.S. Dep't of Justice, 53 F.3d 283, 284 (9th Cir. 1995)). Accordingly, a court's ruling on the merits of a case is not determinative as to whether the Government's position was substantially justified. Pierce, 487 U.S. at 569; Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994).

The substantial justification standard is distinct from the substantial evidence standard utilized in reviewing the merits of an ALJ's disability determination. Cummings v. Sullivan, 950 F.2d 492, 498-99 (7th Cir. 1991). In determining whether the Government's position was substantially justified, the legal and factual circumstances of the case must be reexamined "from a different perspective than that used at any other stage of the proceedings." U.S. v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000).

In response to the motion for fees, the Commissioner argues that although this Court found issues for remand (carpal tunnel, Dr. Lochner's opinion), this Court also found that other issues (RFC, credibility) were sufficiently supported did not need to be reviewed on remand. The Commissioner points out that this Court's EAJA analysis is not limited to the issues upon which a particular party prevailed. See Comm'r, INS, v. Jean, 496 U.S. 154, 161-62 (1990) ("While the parties' postures on individual matters may be more or less justified, the EAJA-like other fee-shifting statutes-favors treating a case as an inclusive whole, rather than as atomized line-items."). Thus, this Court is tasked with assessing whether the Commissioner's position was substantially justified "as a whole." Gautama v. Holder, 606 F.3d 344, 349-50 (7th Cir. 2010).

The Seventh Circuit has set forth a three-part standard for reviewing EAJA petitions. United States v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000). It requires the government to show that its 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 propounded. Golembiewski, 382 F.3d at 724. The Commissioner contends that her position in this case was substantially justified because "this case turned primarily on the adequacy of the ALJ's articulation in his decision." (Dkt. 35 at 4) The Commissioner argues that this Court only remanded for consideration of the evidence relating to the plaintiff's carpal tunnel syndrome, and the ALJ's analysis of such evidence was not "necessarily erroneous." Id.

The plaintiff, however, contends that the Commissioner is mischaracterizing the controlling standard by suggesting articulation errors preclude a finding that the Commissioner's decision was not substantially justified. In Stewart v. Astrue, 561 F.3d 679 (7th Cir. 2009), for example, the Seventh Circuit overturned a denial of EAJA fees, emphasizing that the ALJ completely failed to satisfy his duty of articulation when assessing the claimant's residual functional capacity and formulating hypothetical questions for the vocational witness. 561 F.3d at 684. The court wrote that longstanding precedent requires that "the ALJ himself must connect the evidence to the conclusion through an accurate and logical bridge.'" Id. (citations omitted). Noting that the ALJ invoked the claimant's limited daily activities, it added:

The Commissioner asserts the ALJ's discussion of evidence after the physicians' last review was reasonable, even without specifying what evidence factored into his determination. This position is contrary to our repeated holding that a denial of benefits cannot be sustained where an ALJ failed to articulate the bases of his assessment of a claimant's impairment.

Id. at 684 (citations omitted). Thus, when an ALJ wholly fails to discuss how any of the evidence supports her conclusions, the Commissioner's position that such findings are supported by the legal standards set forth in Seventh Circuit precedent may not be substantially justified. Id. Likewise, the Commissioner's defense of the ALJ's articulation regarding Plaintiff's alleged manipulative limitations does not exhibit "a reasonable connection between the facts alleged and the legal theory propounded" under existing precedent. Golembiewski, 382 F.3d at 724. The ALJ disregarded the Plaintiff's allegations of profound weakness in her upper extremities solely on the grounds that "very recent records from Dr. Fielder's office indicated symptoms consistent with [CTS], his office provided no clinical diagnostic evidence to support his impression (i.e. there were no nerve condition studies performed)." (A.R. at 26) This case is more comparable to Stewart, ...

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