UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

THERESA TALOFF, )

)

Plaintiff, )

)

v. ) No. 12 cv 01696

)

CAROLYN W. COLVIN, Acting ) Magistrate Susan E. Cox

Commissioner of Social Security, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff Theresa Taloff (“plaintiff”) seeks an award of attorneys’ fees and costs under the 

Equal Access to Justice Act (“EAJA”).1 The Commissioner of the Social Security 

Administration (the “Commissioner”) opposes plaintiff’s motion.2 For the reasons set forth 

below, the Court grants the motion and awards attorneys’ fees and costs in the amount of 

$12,099.90. 

I. BACKGROUND

The facts of this case are discussed in detail in the Court’s April 11, 2013 Memorandum 

Opinion and Order3 and thus are only briefly restated here. Plaintiff filed an application for 

Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act on October 12, 

2007.4 She claimed disability on the basis of fibromyalgia, arthritis of the back, and thyroid 

 1 28 U.S.C. § 2412; dkt. 27.

2 Dkt. 30.

3 See Taloff v. Astrue, 1:12-CV-01696, 2013 WL 1499027 (N.D. Ill. Apr. 11, 2013); dkt 25.

4 R. at 263–66, 267–76.
disease.5 Ultimately, Administrative Law Judge (“ALJ”) Sylke Merchan denied plaintiff’s claim 

for DIB in a written decision dated October 28, 2010.6 Plaintiff appealed that decision to this 

Court, and on April 11, 2013, the Court granted summary judgment in favor of the plaintiff and 

remanded the case for further administrative proceedings.7

In her motion for summary judgment, plaintiff presented four arguments. The Court

agreed with one of those arguments8 and found that the ALJ failed to explain why no limitations 

from migraines were established despite extensive evidence in the record indicating that plaintiff 

suffered from migraines of fluctuating severity since 2003.9 Although the ALJ is “not required to 

mention every piece of evidence” in the record, she is required to “provide an ‘accurate and 

logical bridge’ between the evidence and the conclusion that the claimant is not disabled.”10

Here, the ALJ concluded that plaintiff’s migraines were “generally controlled on medication,” 

yet failed to note that plaintiff’s migraines were severe enough for her to seek treatment from a 

neurologist, Dr. Birjari, who reported several times that various medications failed to reduce the 

severity or frequency of plaintiff’s headaches.11

The ALJ was also “required to evaluate whether [a claimant’s] statements about the 

intensity and persistence of [her] pain [are] consistent with the available evidence,”12 and “may 

not disregard a claimant’s testimony about the severity of her symptoms without providing 

 5 R. at 286, 291.

6 R. at 26–27.

7 Dkt. 25.

8 The Court’s April 11, 2013 Opinion reviewed all four of plaintiff’s arguments and made 

numerous recommendations as to each of them on remand. However, the Court only found error 

with respect to two of plaintiff’s arguments, the ALJ’s analysis of plaintiff’s migraines and her 

credibility, and therefore limits the discussion to these findings. 9 See Opinion at 19–20.

10 Craft v. Astrue, 539 F.3d 668, 673 (7th Cir. 2008) (quoting Young v. Barnhart, 362 F.3d 

995,1002 (7th Cir. 2004)).

11 Opinion at 21.

12 See Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 354 (7th Cir. 2005).
careful analysis.”13 In this case, plaintiff testified at the hearing before the ALJ that her 

migraines were getting progressively worse, there was evidence in the record that she sought 

treatment from Dr. Birjari, and evidence that plaintiff sought treatment in an emergency room.14

Nevertheless, the only analysis the ALJ provided regarding plaintiff’s testimony concerned her 

daily activities. The ALJ provided no assessment of her testimony about migraines and no 

discussion of her prior substantial treatment for migraines by Dr. Birjari.15 The Court was

therefore unable to determine whether the ALJ had considered the record as a whole and 

remanded for further clarification. 

II. ANALYSIS

The EAJA provides that a court may award attorney’s fees where “(1) the claimant is a 

‘prevailing party’; (2) the government's position was not substantially justified; (3) no ‘special 

circumstances make an award unjust’; and (4) the fee application is submitted to the court within 

30 days of final judgment and is supported by an itemized statement.”16 The burden is the 

government to show that its position was substantially justified.17 The parties do not dispute that 

the plaintiff is the prevailing party18, there are no special circumstances, and the plaintiff’s 

application was timely filed. Rather, the Commissioner argues that fees are not warranted 

 13 Phillips v. Astrue, 601 F. Supp. 2d 1020, 1030 (N.D. Ill. 2009). 14 See Opinion at 20–21.

15 Id.

16 United States v. Hallmark Const. Co., 200 F.3d 1076, 1078 (7th Cir. 2000) (citing 28 U.S.C. § 

2412(d)(1)(A), (B)).

17 Id. at 1079.

18 The Court agrees that plaintiff is the prevailing party by virtue of the Court’s order remanding 

the matter back to the Commissioner for further consideration. Shalala v. Schaefer, 509 U.S. 

292, 300 (1993).
because the Commissioner’s position was substantially justified, and in the alternative, if fees are 

awarded that it should be reduced because the requested number of hours is unreasonable.19

A. Substantial Justification 

For a position to be “substantially justified” it must be “justified to a degree that could 

satisfy a reasonable person.”20 The Court looks to both the government’s pre-litigation conduct, 

including the ALJ’s decision, and its litigation position to “make only one determination for the 

entire civil action.”21 The government has the burden of establishing that its position was 

substantially justified, and to do so it must show: (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 theory propounded.22 When the government’s legal position 

offends the Commissioner’s own rules or clearly established legal precedent, its position cannot 

be said to be “substantially justified.”23

The Commissioner maintains that the agency’s position was substantially justified and 

that there was a reasonable basis for assuming the ALJ’s position should be defended.24 Rather 

than addressing the merits of its position, the Commissioner points out that the Court agreed with 

only one of the four arguments raised by the plaintiff, arguing that the government’s error on one 

point does not mean that it lacked substantial justification for its litigation position during the 

entirety of the civil action.25 However, prevailing on a majority of the issues likewise does not 

 19 Mot. at 1.

20 Pierce v. Underwood, 487 U.S. 552, 565 (1988).

21 Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006). 22 Hallmark Const. Co., 200 F.3d at 1080. 23 See Golembiewski v. Barnhart, 382 F.3d 721, 724–725 (7th Cir. 2004);

24 Op. at 4.

25 Op. at 2 (citing Jackson v. Chater, 94 F.3d 274, 297–80 (7th Cir. 1996)).
automatically make the Commissioner’s position substantially justified, 26 and we must refrain 

from “argument counting.”27

Plaintiff argues that the Commissioner’s position is not substantially justified because the 

ALJ’s failure to consider an entire line of evidence regarding plaintiff’s migraines was contrary 

to “‘clearly established statutory and court precedent.’”28 Plaintiff also argues that the 

Commissioner’s position is not substantially justified on the basis that the ALJ failed to properly 

discuss and explain her credibility determinations regarding plaintiff’s testimony. 

The ALJ’s failure to address evidence of plaintiff’s migraines and fully explain her 

determinations regarding plaintiff’s credibility was contrary to established legal precedent. An

ALJ may not ignore entire lines of evidence that are contrary to her findings, and must at least 

minimally articulate her analysis of the evidence in order to produce an informed review.29 In 

addition, an ALJ is required to provide give specific reasons for discounting a claimant’s 

credibility.30 The case law on these two issues is clear and that an ALJ’s failure to properly 

address them is grounds for remand or reversal. The ALJ’s errors in these areas are enough for 

the Court to find that the Commissioner’s entire position was not substantially justified, even 

though the Commissioner defeated two of plaintiff’s four arguments on review.31 As such, the 

Court finds that the Commissioner’s position was not substantially justified and that an award of 

fees under EAJA is appropriate in this case. 

 26 Hallmark Const. Co., 200 F.3d at 1080. 27 See Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009).

28 Mot. at 3 (citing Pierce v. Underwood, 487 U.S. 552, 561 (1988)). 

29 Zurawski v. Halter, 245 F.3d 881, 887–88.

30 Martinez v. Astrue, 630 F.3d 693 (7th Cir. 2011). 

31 Jackson v. Chater, 94 F.3d 274, 279-80 (7th Cir. 1996). 
B. Determination of Fees

Plaintiff requests an award of attorneys’ fees and costs totaling $12,099.90. The 

breakdown of the calculation is as follows: 64.8 attorney hours (including 6.5 hours for the reply 

brief to this motion) at the rate of $184.25 per hour (totaling $11,939.40), 1.5 legal assistant 

hours at the rate of $95.00 per hour (totaling $142.50), and costs of $18.00.32 The Commissioner 

does not dispute the hourly rate requested by plaintiff. The plaintiff bears the burden of showing 

that the fees requested are reasonable.33

The Commissioner advances three arguments for reducing the award of attorney’s fees. 

First, the Commissioner argues that the amount of time billed for the opening and reply briefs 

was “unreasonable in light of the straightforward issues and size of the record,” which contained 

796 pages, including 466 pages of medical records.34 However, in the Court’s experience, a 796 

page administrative record with 466 pages of medical records is indeed a formidable record to be 

reviewed. Moreover, courts in this district have found that 40-60 hours is the general range for 

Social Security disability briefing within the Seventh Circuit.35 Thus, while plaintiff’s request for 

a total of 64.8 hours is on the high end, the Court finds that it is reasonable in light of lengthy 

administrative record. 

The Commissioner also takes issue with the 3.6 hours spent by Mr. Schultz and the 1.5 

hours spent by Mr. Marvin reviewing and editing the opening and reply briefs prepared by Mr. 

Dukich, a less experienced attorney.36 The Commissioner argues that this time is duplicative and 

cautions the Court not to award fees for training and points out that all three attorneys are billing 

 32 See Ex. C to Mot.; Reply at 9–10.

33 See Hensely v. Eckerhart, 461 U.S. 424, 434 (1983).

34 Op. at 5.

35 See Schulten v. Astrue, No. 08-C-1181, 2010 WL 2135474 (N.D. Ill. May 28, 2010)

(collecting cases). 

36 Op. at 5.
at the same rate. In the Court’s view, editing by other attorneys is a common practice that should 

be encouraged because of the value it provides in improving the quality of submissions to the 

Court. The Court therefore finds that the time spent reviewing and editing is justified. 

Finally, the Commissioner challenges the 22.5 hours Mr. Dukich spent preparing the 

reply brief, noting that Mr. Dukich took nearly as much time to draft the reply brief as he did the 

opening brief.37 The Commissioner requests that the court reduce that time by 30%, to 15.75 

hours. In support, the Commissioner provides one comparative case, Akhteebo v. Astrue, No. 07 

CV 1093 (N.D. Ill. July 23, 2008), to support its contention that the time spent was 

unreasonable.38 Akhteebo is easily distinguished from the case at bar. In Akhteebo, the 

plaintiff’s fee requested included 11.1 hours for preparation of the reply brief by an attorney with 

27 years of experience. The original brief took 14.4 hours and was prepared by an attorney with 

only seven years of experience. In addition, the administrative record was 356 pages with 230 

pages of medical evidence. Magistrate Judge Keys discounted the 11.1 hours requested because 

the reply brief did not contain any new research, the administrative record was relatively short,

and he found it unreasonable that a reply brief by an experienced attorney would take so much 

time. In the case at bar, the opposite is true. The administrative record is more than twice the 

size of the record in Akhteebo, the reply brief contained additional research, and the plaintiff was

responding to a “detailed all out defense” by the Commissioner.39 Accordingly the Court finds

that plaintiff’s request for fees is reasonable.

 37 Id. at 6.

38 Id. 39 Reply at 7.
III. CONCLUSION

For the reasons set forth above, the Court finds that the Commissioner’s position was not 

substantially justified and that plaintiff’s fees are reasonable. Accordingly, the Court grants 

plaintiff’s motion for attorney’s fees in the amount of $12,099.90. 

IT IS SO ORDERED.

Date: March 5, 2014 /s/ Susan E. Cox____________

 Susan E. Cox

 U.S. Magistrate Judge