review, and because the government acknowledged the ALJ’s error when it stipulated to remand
the case with instructions that the ALJ rectify the aforementioned error, the government's
position was not substantially justified and Plaintiff is entitled to attorney fees and costs.
Turning to the amount of legal fees to be awarded, Plaintiff asks the Court to depart from
the statutory hourly limit of $125 because of an increased cost of living and because of the
limited number of attorneys practicing Social Security disability law.2 The EAJA provides that a
court may award attorney fees in excess of the $125 per hour rate if it "determines that an
increase in the cost of living or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. §2412(d)(2)(A)(ii).
Plaintiff urges this Court to increase the hourly rate in accordance with the monthly Consumer
Price Index for the Chicago region, between February 2002 and June 2003, the period which
covers Plaintiff's appeal of the ALJ's unfavorable decision. The Chicago regional Consumer
Price Index is a reasonable method by which to calculate a cost of living increase. See Willis,
2002 WL 31779907, at *2-3 (granting attorney's fee at an hourly rate of $142.27, reflecting cost
of living increases in Chicago between March 1996 and January 2002, based on the Consumer
Price Index). The Court finds that Plaintiff's request for an increased fee based on the increased
cost of living is reasonable. See id. Therefore, the Court grants Plaintiff's motion to increase
counsel's fee according to the Consumer Price Index, as set forth in counsel's itemization.

Plaintiff submits that he is entitled to $4,617.27, representing costs of $180.30 and 30.8 hours

2 The government did not object to calculating counsel's attorney fee at the rate of
$125.00 and made no argument regarding calculating counsel's fee at a rate adjusted to reflect a
cost of living increase.

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position was not substantially justified. Cf Pierce v. Underwood, 487 U.S. 552, 568 (1988)
("The unfavorable terms of a settlement agreement, without inquiry into the reasons for
settlement, cannot conclusively establish the weakness of the Government's position.").

This Court finds that the Commissioner's position was not substantially justified. First,
the ALJ improperly made a conclusory credibility determination unsupported by specific
references to the record when it failed to discuss Plaintiff's testimony leading to its conclusion,
and likewise failed to consider the intensity and persistence of Plaintiff's symptoms to determine
his capacity for work, in violation of Social Security Ruling 96-7p. See Gibson-Jones v. Apfel,
995 F. Supp. 825, 826-27 (N.D. Ill. 1998) (where the ALJ fails to set forth specific legitimate
reasons supporting an adverse credibility determination, the government's position is not
substantially justified). Further, as Plaintiff argued, the ALJ failed to provide analysis that would
permit meaningful judicial review of its conclusion that the plaintiff could perform light work,
and in reaching that conclusion, the ALJ failed to consider evidence favorable to the plaintiff.
See e.g. Godbey v. Massanari, No. 99 C 2690, 2001 WL 1035205, at *3 (N.D. Ill. Sep. 4, 2001)
(holding that because an ALJ failed to develop an adequate record supporting its decision to deny
benefits, its decision did not have a reasonable basis in fact and therefore was not substantially
justified); Willis v. Barnhart, No. 99 C 3437, 2002 WL 31779907, at *2-3 (N.D. Ill. Dec. 11,
2002) (holding that the government's position was not substantially justified where the ALJ failed
to refer to evidence supporting his conclusions and failed to discuss evidence that was favorable
to the claimant and that undermined the ALJ's conclusion). Therefore, because the ALJ
improperly made a credibility finding without sufficiently explaining its reasons, and likewise

failed to provide an analysis relating to the residual functional capacity permitting judicial

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that his attorney expended on this case.’ The record reflects that Plaintiff's attorney conducted a
thorough and appropriate investigation of the facts and expended a reasonable amount of time

and resources prosecuting this case.’

Conclusion
For the foregoing reasons, Plaintiff's motion is granted and the Plaintiff is awarded
attorney fees plus costs in the amount of $4,617.27.

ENTER ORDER:

ae’ oc. CE.

MARTIN C, ASHMAN
Dated: July 7, 2003. United States Magistrate Judge

> The hourly rates are as follows: $141.25 for June 2002; $142.50 for March and April
2002; $143.75 for May through September 2002; $145.00 for January and February 2003;
$146.25 for March 2003; $145.00 for April 2003; and $145.00 for May and June 2003,
representing an average of previous months’ CPI’s.

* Because the Court finds the proposed cost of living increase reasonable, the Court does
not address Plaintiff's argument that the limited number of attorneys specializing in Social
Security disability warrants an increased fee. However, the Court notes that the Pierce court held
that attorneys may only be reimbursed under the "special factor" provision of the EAJA if
specialized skills "are necessary and can be obtained only at rates in excess of the [$125] cap.”
Pierce, 487 U.S, at 572. The Seventh Circuit holds that social security specialization is not so
specialized as to warrant, generally, exceeding the EAJA's statutory fee. Raines v. Shalala, 44
F.3d 1355, 1361 (7th Cir. 1995). Instead, to determine whether to award a higher fee, the court
must inquire whether the case is so "unusual" that it "requires someone of specialized training
and expertise unattainable by a competent attorney through a diligent study of the governing legal
principles." Jd. (internal quotations omitted). This is not such a case.

-5-


Min: orm (06/97
Mite Order org (06/97)

United States District Court, Northern District of Hlinois

Name of Assigned Judge Martin C. Ashman Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C 1545 DATE 71712003
CASE Larry D. Reynolds vs. Jo Anne B. Barnhart
TITLE

[In the following box (a) indicate the party filing the motion, e.g,, plaintiff, defendant, 3¢d party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) oO Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) oO Answer briefto motion due____. Reply to answer brief due.

(4) im Ruling/Hearing on set for___—_att

(5) Oo Status hearing[held/continued to] [set for/re-set for]on__—_—sset for at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on set for at.

(7) Oo Trial[set for/re-set for]on___at

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto__—_at

(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CAFRCP4(m) CLocal Rule 41.1 OFRCP41(a)(1) CFRCP41(a)(2).

ao) il [Other docket entry] Enter memorandum opinion and order. Plaintiff's motion for attorney’s fees

and costs pursuant to the Equal Access to Justice Acta As. granted Plaintiff is awarded attorney fees plus
costs in the amount of $4,617;27.

(11) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

> “Number

No notices required, umber of notices

JUL 6 7 eR

wv | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.
3712003

ate mailed notice
courtroom

Is deputy’s by s
initials an
Oe rite ingeiyed in
central Clenes Office rmilng deputy nitals



Copies have been mailed to:

ASHLEY S. ROSE, Esq.

Law Offices of Ashley S. Rose
799 Roosevelt Road

Building 6, Suite 104

Glen Ellyn, IL 60137

Attorney for Plaintiff

MS. KATHRYN A. BEVERLY
Special Assistant U.S. Attorney
200 West Adams Street

30th Floor

Chicago, IL 60606

Attorney for Defendant



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
LARRY D. REYNOLDS, )
)
Plaintiff, ) Case No. 02 C 1545
)
v. Magistrate Judge
POCKETED Martin C. Ashman
JO ANNE B. BARNHART, wLo7 2903
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

The Plaintiff, Larry D. Reynolds, brings this action for attorney's fees and costs pursuant
to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. §2412(d), for the prosecution of his
Social Security appeal before the District Court and for this motion for fees and costs. The
Commissioner does not object to the motion.!

Under the BAJA, the court may award fees if 1) the plaintiff is the "prevailing party;” 2)
the government's position was not substantially justified; 3) no “special circumstances make an
award unjust;" and 4) the fee petition is submitted within thirty days of final judgment and is
accompanied by an itemized statement. 28 U.S.C. §2412(d)(1)(A), (B); Comm’r., INS. v. Jean,
496 U.S. 154, 158 (1990); United States v. Hallmark Constr. Co. , 200 F.3d 1076, 1078-79 (7th
Cir. 2000). The decision to award attorney fees under the EAJA is within the Court's discretion.
Cf. Hallmark Constr. Co., 200 F.3d at 1078. There is no dispute, and the Court agrees, that the

Plaintiff in the instant case was the "prevailing party," he filed a timely motion accompanied by

' The parties have consented to have this Court conduct any and all proceedings in this
case, including the entry of final judgment. See 28 U.S.C. § 636(c); Local R. 73.1(b).


an itemization of fees and expenses, and no special circumstances exist which would make an
award of fees unjust. Although the government does not contest that the administrative
determination of the Administrative Law Judge was not substantially justified upon the record as
a whole, we will consider the issue independently. Cf Gonzales v. Transfer Techs., Inc., 301
F.3d 608, 609 (7th Cir. 2002) (noting that although the decision to award attorney fees lies within
the district court's discretion, the court must articulate its reasons to provide a record for higher
court's review of that decision).

The government bears the burden of demonstrating that its position was substantially
justified. Hallmark Constr. Co., 200 F.3d at 1079 (citing Marcus v, Shalala, 17 F.3d 1033, 1036
(7th Cir. 1994)). To do so, the government must 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
advanced." /d. at 1080 (internal quotations omitted). In applying this standard the Court must
examine the government's conduct in both the prelitigation and the litigation contexts. Jd. "The
decision of an ALJ constitutes prelitigation conduct of an agency." Steele v. Barnhart,

No. 99 C 5455, 2002 WL 31478268, at *1 (N.D. Ill. Nov. 5, 2002).

On April 1, 2003, the parties agreed to remand this case to the Commissioner of Social
Security for further proceedings. The stipulation specifically instructs the ALJ to evaluate
Plaintiff's pain complaints, in accordance with Social Security Ruling 96-7p, and to provide
reasons in his decision. (Stipulation for Remand.) By agreeing to remand the case, the
Commissioner essentially agreed that its position was not substantially justified. However, we

will not accept such an agreement to remand as conclusively establishing that the government's

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