United States District Court, S.D. Indiana, Terre Haute Division
OPINION AND ORDER
L. Miller, Jr. Judge.
cause is before the court on Virginia Carrico's motion
for attorney fees under the Equal Access to Justice Act, 28
U.S.C. § 2412, following the court's entry of final
judgment remanding the case to the Commissioner of Social
Security for further proceedings. Ms. Carrico's attorney,
Adriana M. de la Torre, requests an award of fees in the
amount of $10, 888.02. The Commissioner objects to her
request on the grounds that its position was substantially
EAJA isn't “an automatic fee-shifting statute,
” so merely prevailing against the Commissioner
doesn't entitle a party to an award of fees. Potdar
v. Holder, 585 F.3d 317, 319 (7th Cir.2009). The EAJA
allows a district court to award attorney's fees
“where (1) the claimant was a ‘prevailing
party,' (2) the government's position was not
‘substantially justified,' (3) no special
circumstances make an award unjust, and (4) the claimant
filed a timely and complete application with the district
court.” Stewart v. Astrue, 561 F.3d 679,
683-684 (7th Cir. 2009).
Carrico filed a timely petition supported by an itemized
statement and is a “prevailing party” and there
are no “special circumstances” in this case that
would make an award of fees and costs unjust. Ms. Carrico and
Commissioner dispute whether the Commissioner's position
was substantially justified.
Commissioner bears the burden of establishing that his
position was substantially justified overall. Conrad v.
Barnhart, 434 F.3d 987, 990 (7th Cir.2006). “[A]
position can be justified even though it is not correct, and
. . . 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.”
Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988);
see also Stewart v. Astrue, 561 F.3d 679, 683 (7th
Cir.2009); Golembiewski v. Barnhart, 382 F.3d 721,
724 (7th Cir. 2004). “EAJA fees may be awarded if
either the government's pre-litigation conduct
[e.g., the ALJ's decision] or its litigation
position are not substantially justified.”
Golembiewski v. Barnhart, 382 F.3d at 724 (quoting
Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.
Commissioner argues that its position was substantially
justified because the court rejected some of Ms.
Carrico's arguments and because there was no clear
authority from the Seventh Circuit. Ms. Carrico responds that
the court must examine all of the agency action, including
actions at the administrative level. Ms. Carrico argues that
the agency action was not substantially justified either at
the administrative level or during litigation.
position is substantially justified if it has a reasonable
basis in law and fact. Stewart, 561 F.3d at 683. As
the court noted in its opinion, the ALJ didn't consider
Ms. Carrico's depression at all in step two of its
analysis. The court of appeals has repeatedly instructed the
Social Security Administration to consider the
applicant's medical problems in combination. See
the collection of cases in Goins v. Colvin, 764 F.3d
677, 681 (7th Cir. 2014). The ALJ's lack of consideration
of Ms. Carrico's depression wasn't substantially
justified. And the Commissioner wasn't substantially
justified in continuing to defend the ALJ overlooking Ms.
Carrico's depression. Ms. Carrico is entitled to attorney
fees under the EAJA.
Commissioner hasn't challenged the number of hours billed
or the hourly rate requested, but the plaintiff bears the
burden of proving the reasonableness of the hourly rate and
hours worked. Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). Counsel's use of the Consumer Price Index to
calculate an appropriate inflation adjustment is reasonable,
as is the hourly rate of $193.05 that she requests, see
Tchemkou v. Mukasey, 517 F.3d 506, 512 (7th Cir. 2008)
(“[G]iven the passage of time since the establishment
of the hourly rate, a cost-of-living adjustment is
warranted.”). Counsel submitted an itemized statement
of hours performed, and the court finds that the hours
expended by counsel are reasonable.
the court GRANTS Ms. Carrico's motion for an award of
fees and costs under the EAJA [Doc. No. 17] with the addition
of fees incurred to prepare the reply brief [Doc. No. 20] in
the total amount of $10, 888.02. This amount shall be paid
directly to the de la Torre Law Office LLC, 333 N. Alabama
Street, Suite 350, Indianapolis, IN 46204, subject to ...