United States District Court, S.D. Indiana, Indianapolis Division
MARIE E. WALTERS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
ENTRY ON PLAINTIFF'S MOTION FOR ATTORNEYS'
William T. Lawrence, Judge.
before the Court is Plaintiff Marie E. Walters motion for
attorneys' fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. section 2412 (Dkt. No. 28).
Initially, Walters requested fees at a rate of $190.00 per
hour for 52.50 hours of work, totaling $9, 975.00. Dkt. No.
28 at 1. She later supplemented her original motion for
attorneys' fees after having reviewed the
Commissioner's response and briefed her reply.
See Dkt. No. 37. Walters now requests $10, 830.00 in
fees, for 57 hours of work at a rate of $190.00 per hour.
Id. at 1. The motions are fully briefed and the
Court, being duly advised, DENIES
Walters's motion for the reasons set forth below.
appealed to this Court after the Commissioner adopted the
decision of an Administrative Law Judge (“ALJ”)
finding that she was not disabled. This Court determined that
remand was required because the AJL “did not explain
why he believed the evidence indicated that [the]
restrictions [included in the RFC and his hypothetical
questions to the vocational expert] accounted for
Walters's moderate difficulties with concentration,
persistence, and pace” or whether those restrictions in
the RFC and hypothetical questions were meant to address
limitations in concentration, persistence, or pace. Dkt. No.
26 at 5.
to the EAJA, a successful litigant against the federal
government is entitled to recover her attorney fees if 1) she
was a “prevailing party”; 2) the government's
position was not “substantially justified”; 3)
there exist no special circumstances that would make an award
unjust; and 4) she filed a timely application. 28 U.S.C.
§ 2412(d)(1)(A), (B).
Commissioner argues that a fee award is not appropriate in
this case because her position was substantially justified.
She has the burden of proving that her pre-litigation conduct
(which includes the ALJ's decision) and her litigation
position were substantially justified. Cunningham v.
Barnhart, 440 F.3d 862, 863-64 (7th Cir. 2006).
“In order for the Commissioner's position to be
substantially justified, it must have reasonable factual and
legal bases, and there must exist a reasonable connection
between the facts and her legal theory.” Id.
at 864 (citing Pierce v. Underwood, 487 U.S. 552,
565-66 (1988)). Additionally, the Commissioner's position
need not have been correct to be substantially justified.
Pierce, 487 U.S. at 569 (“Conceivably, the
Government could take a position that is not substantially
justified, yet win; even more likely, it could take a
position that is substantially justified, yet lose.”).
“‘Substantially justified' does not mean
‘justified to a high degree, ' but rather has been
said to be satisfied if there is a ‘genuine dispute,
' or if reasonable people could differ as to the
appropriateness of the contested action.” Stein v.
Sullivan, 966 F.2d 317, 320 (7th Cir. 1992) (quoting
Pierce, 487 U.S. at 565 (quotations omitted)).
Commissioner argues that “the Court's analysis
indicates that the agency had a rational basis for believing
it could defend the ALJ's decision, ” and this
Court agrees. Dkt. No. 33 at 3. The ALJ included in his
hypothetical to the vocational expert a number of
restrictions that he may have believed accounted for
Walters's moderate difficulties with concentration,
persistence, and/or pace. See R. at 22. The
AJL's position was not unreasonable: “[R]easonable
people could differ” as to whether his hypothetical
addressed Walters's limitations, making the ALJ's
position substantially justified. Stein, 966 F.2d at
320. In fact, this Court did not agree that the restrictions
identified in the hypothetical necessarily addressed
Walters's difficulties. See Dkt. No. 26 at 5.
Because it was not entirely clear to the Court that they did,
the Court stated that the ALJ “did not explain why he
believed the evidence indicated that those restrictions
accounted for Walters's moderate difficulties with
concentration, persistence, and pace, ” and it directed
the ALJ to correct those omissions on remand. Id.
That the ALJ did not fully explain his reasoning “in no
way necessitates a finding [that] the [Commissioner]'s
position was not substantially justified.”
Stein, 966 F.2d at 320.
was evidence to warrant the Commissioner's position in
support of the ALJ's decision. As the Commissioner notes,
the ALJ included in the RFC finding and hypothetical question
to the vocational expert several specific restrictions. Dkt.
No. 33 at 4 (citing R. at 22). The Court simply concluded
that addressing this particular set of restrictions in the
hypothetical question to the vocation expert, without further
explanation, was not sufficient to show that the ALJ
addressed Walters's concentration, persistence, or pace
limitations. While the Court ultimately determined that error
occurred, the Commissioner's position in support of the
ALJ's decision was not unreasonable. A genuine dispute
Court agrees with the Commissioner that his position was
substantially justified in this case, “even though the
ALJ was not as thorough in his analysis as he could have
been.” Cunningham, 440 F.3d at 865. Therefore,
the Court believes that this is the type of case in which an
award of fees and costs is not appropriate under the EAJA
despite the Commissioner's loss. Accordingly, applying
the standard mandated by the EAJA, Walters's petition for
fees must be DENIED.
 Pursuant to Federal Rule of Civil
Procedure 25(d), Nancy A. Berryhill automatically became the
Defendant in this case when she succeeded Carolyn Colvin as
the Acting Commissioner of ...