Opinion
CASE NO. 4:03-cv-0130-DFH-WGH.
June 28, 2005
ENTRY ON APPLICATION FOR ATTORNEY FEE AWARD
Plaintiff Tina Lipscomb won remand of the denial of her application for disability insurance benefits under the Social Security Act. She has applied for an award of $4,000.00 in attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) and for costs of $163.95 under 28 U.S.C. § 2412(a). The defendant opposes the application on the ground that the government's position was substantially justified.
Standards under the Equal Access to Justice Act
The EAJA provides in relevant part:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . ., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.28 U.S.C. § 2412(d)(1)(A). In general, to be eligible for a fee award under this provision, four elements must be satisfied: (1) the claimant was a "prevailing party"; (2) the Commissioner's position was not "substantially justified"; (3) no "special circumstances make an award unjust"; and (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), any fee application was submitted to the court within 30 days of final judgment in the action and was supported by an itemized application. See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 (1990). (The EAJA also uses financial means tests for award eligibility, see 28 U.S.C. § 2412(d)(2)(B), but those tests are unlikely to come into play for a person seeking disability benefits under the Social Security Act.)
Ms. Lipscomb is a "prevailing party" for purposes of the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993) (remand under sentence four of 42 U.S.C. § 405(g) makes the plaintiff a prevailing party under the EAJA). The only issue the Commissioner has raised is whether her position was "substantially justified."
The Commissioner has the burden of proving that her position was substantially justified. Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996); Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The court will look to both the agency's pre-litigation conduct and its litigation position. Cummings v. Sullivan, 950 F.2d 492, 496 (7th Cir. 1991); 28 U.S.C. § 2412(d)(2)(D) (for purposes of fee award under EAJA, "`position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based"). To be "substantially justified," the Commissioner's position must have a reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Jackson, 94 F.3d at 278. It must be stronger than merely non-frivolous. Pierce, 487 U.S. at 565-66. On the other hand, the Commissioner's position need not have been correct. See Jackson, 94 F.3d at 278, quoting Pierce, 487 U.S. at 566 n. 2. "Substantially justified" does not mean "justified to a high degree"; the standard is satisfied if there is a "genuine dispute," or if reasonable persons could differ as to the appropriateness of the contested action. Stein v. Sullivan, 966 F.2d 317, 320 (7th Cir. 1992), citing Pierce, 487 U.S. at 565.
The standard of review that applies to the merits of benefits decisions is deferential to the Commissioner. However, if the court has remanded the denial of benefits, that deferential standard of review does not automatically mean that the Commissioner's position must have been substantially justified for purposes of the EAJA. See, e.g., Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994). Under the EAJA, the test is whether the Commissioner had a rational ground for thinking that she had a rational ground for denying benefits. See id.
Discussion
The Commissioner's position in this litigation was not substantially justified. Without reciting all the issues addressed on the merits, the court must note that the remand was based on the ALJ's multiple failures to address the evidence and to confront Ms. Lipscomb's true condition. The ALJ failed to address her current carpal tunnel condition, basing the opinion instead on a prediction of improvement. He failed to address whether Ms. Lipscomb needed a sit-stand option, which would impose substantial limits on her ability to work, especially in combination with her other impairments. He relied on outdated information about her ability to bend. He also failed to give sufficient consideration to Ms. Lipscomb's long record of work in evaluating the credibility of her testimony about her pain and limitations.Although a plaintiff who wins a remand does not thereby show automatically that the Commissioner's position was not substantially justified, this plaintiff is certainly entitled to attorney fees under the EAJA. This was not a close case on judicial review. Compare Golembiewski v. Barnhart, 382 F.3d 721, 724-25 (7th Cir. 2004) (reversing denial of EAJA fee petition where merits decision had not been close; strong language in reversal decision showed Commissioner's position was not substantially justified), with Cummings v. Sullivan, 950 F.2d 492, 498 (7th Cir. 1991) (affirming denial of EAJA fee petition where merits had presented close question); cf. United States v. Hallmark Construction Co., 200 F.3d 1076, 1079 (7th Cir. 2000) (closeness of case on merits could show substantial justification under EAJA). Plaintiff showed that the ALJ failed in several ways to address the unusual combination of impairments and limitations. The Commissioner's defense of the ALJ's decision was not substantially justified within the meaning of the EAJA.
Accordingly, plaintiff is entitled to an award of fees for 32 hours. Her application requests an hourly rate of $125.00, which is the statutory rate enacted in 1996. The request overlooks the statutory provision for upward adjustment for increases in the cost of living, see 28 U.S.C. § 2412(d)(2)(A), and inflation since 1996 has been substantial enough that the adjustment is needed in this case. The hourly rate for work done in 2003 should be $146.02. See Uphill v. Barnhart, 271 F. Supp. 2d 1086, 1096-97 (E.D. Wis. 2003). The court will enter judgment in favor of plaintiff for an attorney fee of $4,672.64, plus costs of $163.95, for a total award of $4,836.59.
So ordered.