evidenced “mental retardation” under that provision. The Court now concludes that the
Commissioner was not substantially justified in her position that the record contained adequate
evidence to support the ALJ’s findings.

In concluding that Elster was not mentally retarded, the ALJ found that Elster did not
have an additional impairment that imposed significant work-related limitation of function. At
the same time, the ALJ found that Elster had the following “severe” impairments: borderline
range of intelligence, learning disability, history of moderately low functioning range in adaptive
behavior, and history of asthma. Under the regulations, a severe impairment meets the
“additional impairment” requirement of Listing 12.05(C) and, thus, the ALJ’s decision was
internally inconsistent. As a result, the Commissioner did not have “a rational ground for
thinking it had a rational ground for its action” on this issue. Kolman v. Shalala, 39 F.3d 173,
177 (7" Cir. 1994).

As for the decision to remand the case, it was based on a lack of any finding as to whether
Elster evidenced “significantly subaverage general intellectual functioning.” Effective
September 20, 2000, the regulations for evaluating mental impairments were revised to state that
a claimant must affirmatively show that he is mentally retarded before proceeding to the other
stated requirements of Listing 12.05(C). The Commissioner took the position that the new
regulations applied retroactively to Elster’s case because they did not constitute a change in the
law but, rather, simply clarified an unsettled or confusing area of the law. See Pope v. Shalala,
998 F.2d 473, 483 (7" Cir. 1993) (reversed on other grounds). The Court agreed and, finding no
assessment in the record of Elster’s general intellectual functioning, remanded the case for

further proceedings on that issue.



2003, Elster amended his fee request to include time spent responding to the Commissioner’s
challenge, and now seeks $8,108.31.
DISCUSSION

Under the EAJA, a court may award attomey’s fees to a prevailing party in a civil suit
against the government if the government’s position was not “substantially justified.” 28 US.C.
§2412(d)(1)(A). It is undisputed that Elster has prevailing party status. Def. Mem., pp. 1, 4;
Shalala, 509 U.S. at 300. Thus, the only issue is whether the government’s position was
substantially justified; that is, whether it was “justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The Seventh Circuit has held that
“substantial justification” is demonstrated when the govemment’s position is 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.” United States v. Hallmark Construction Co., 200 F.3d 1076, 1078 (7" Cir. 2000)
(citations and quotations omitted). In making a substantial justification determination, a court
should consider both the government’s litigation and pre-litigation conduct. Jackson v. Chater,
94 F.3d 274, 278 (7° Cir. 1996). Merely prevailing in a lawsuit against the government does not
automatically entitle a party to fees under the EAJA. However, the government bears the burden
of establishing that its position was substantially justified. Id.; Hallmark, 200 F.3d at 1079.
A. Elster’s Entitlement to Attorney’s Fees

In this case, the Court found that the ALJ’s decision to deny benefits to Elster was not
supported by substantial evidence because (1) Elster did have an “additional impairment” for

purposes of Listing 12.05(C), and (2) the ALJ made no determination as to whether Elster


Contrary to the Commissioner’s assertion, the ALJ did not simply fail to adequately
articulate his rationale for determining that Elster did not have an impairment that satisfied
Listing 12.05(C). Rather, the ALJ erred in his assessment of one criterion under that provision
and failed to make any finding whatsoever regarding a second criterion. Thus, the Court does not
believe that the Commissioner met her burden of establishing that her position in supporting the
ALJ’s conclusion was substantially justified. See Corder v. Massanari, No. 00 C 2714, 2001
WL 1355986, at *2 (N.D. Ill. Nov. 1, 2001) (“if'an ALJ’s decision lacks an adequate factual
basis . . . then the Commissioner’s position in relying upon it cannot be substantially justified”);
Scott v. Barnhart, No. 99 C 4651, 2003 WL 1524624, at *4 (N.D. Ill. Mar. 21, 2003) (it is a
“well-established legal principle that if an ALJ’s decision . . . does not allow a court to determine
that it has an adequate factual basis . . . then the Commissioner’s position in relying upon it
cannot be substantially justified”).

B. Amount of Fees and Costs

Having determined that Elster is entitled to his attomey’s fees, the Court next considers
whether the amount requested is reasonable. Elster seeks $8,108.31 in fees and expenses,
representing 55 hours of work at approximately $147.50 per hour. This amount includes a proper
request for fees incurred in pursuing this fee request. See Commissioner, INS v. Jean, 496 U.S.
154, 162 (1990). The Commissioner does not object to the stated hourly rate. Rather, the
Commissioner claims that the number of hours spent on this case “exceeds the number of hours
numerous courts throughout the country have concluded are reasonable.” Def. Mem., p. 4.

Specifically, the Commissioner challenges Elster’s request for eight hours his attorney spent on



A

Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judj Sitting Judge if Oth
or Magistrate Judge Nan R. Nolan ‘han Asigned Judge
CASE NUMBER 01 C 4085 DATE 7/28/2003
CASE Elster vs. Barnhart
TITLE

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

MOTION:

DOCKET ENTRY:

(1) a Filed motion of [ use listing in “Motion” box above.]

(2) oO Brief in support of motion due

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

(4) a Ruling/Hearingon___—_ssetfor_—at__

(5) oO Status hearing[held/continued to] [set for/re-set for] on setfor_ at.

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on setfor__—at_

(7) a Trial[set for/re-set for]on__at

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

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OOFRCP4(m) CLocal Rule 41.1. CFRCP41(a)(1) CFRCP41(a)(2).

do) ff [Other docket entry] For the reasons stated in the attached Memorandum Opinion and Order,

a)

Elster’s application for attorney’s fees pursuant to the EAJA [19-1] is granted in the amount of $8,108.31.

(For further detail see order attached to the original minute order.]

No notices required.

VY | Notices mailed by judge’s staff,

Notified counsel by telephone.

Docketing to mail notices

Mail AO 450 form.

Copy to judge/magistrate judge

courtroom
deputy’s
initials

No notices required, advised in open court.

Document
Number

2

umber of notices

Date/time received in
central Clerk’s Office

YUL 94 2003

date docketed

i

ailing deputy initials



telephone calls and 25 hours she devoted to drafting the memorandum regarding summary
judgment. Jd. p. 5.

The Court has reviewed the itemized fee request and finds that it is “reasonable and
consistent with this type of social security case.” See, e.g., Rice v. Apfel, 16 F. Supp. 2d 971, 975
(N.D. Hl. 1998) ($8,250.68 in fees reasonable for 62.84 hours of work); Willis v. Barnhart, No.
99 C 3437, 2002 WL 31779907, at *3 (N.D. Ill. Dec. 11, 2002) ($8,002.68 in fees reasonable for
56.25 hours of work); Stringer v. Apfel, No. 97 C 1223, 1998 WL 774138, at *3 (N.D. IIL. Oct.
29, 1998) ($7,848.18 in fees reasonable for 48.51 hours of work). Thus, Elster is entitled to
$8,108.31 in attorney’s fees.

CONCLUSION
For the reasons stated above, Elster’s application for attorney’s fees pursuant to the EAJA

is granted in the amount of $8,108.31.

Pew. (2. : y, anh
NAN R. NOLAN
United States Magistrate Judge

Dated: July 28, 2003



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

EASTERN DIVISION
RICHARD ELSTER, )
Plaintiff, }
vs. } Case No. 01 C 4085
JO ANNE B. BARNHART, }
Commissioner of Social Security, )
Defendant. }

MEMORANDUM OPINION AND ORDER'
NAN R. NOLAN, Magistrate Judge:

This matter is before the Court on plaintiff Richard Elster’s application for attorney’s fees
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §2412(d). On January 9, 2003,
the Court reversed and remanded for further consideration Elster’s applications for Disabled
Adult Child’s Insurance Benefits (“DCIB”) and Supplemental Security Income (“SSI”). Elster
claims that he is entitled to fees because the Commissioner’s position in defending the decision
of the Administrative Law Judge (“ALJ”) was not “substantially justified.” For the reasons set

forth below, Elster’s application for attorney’s fees is granted in the amount of $8,108.31.

DOCK TEn

Jy,
te 5 2003

' The parties have consented to the jurisdiction of the United States Magistrate

Judge pursuant to 28 U.S.C. §636(c).



BACKGROUND*

Elster applied for DCIB and SSI benefits in March 1997, alleging that he had been
disabled since 1981 due to a learning disability. The Social Security Administration (“SSA”)
denied his application initially and on reconsideration. Following a hearing on September 9,
1998, the ALJ denied Elster’s claim for benefits, finding that he was not disabled.

The SSA Appeals Council denied Elster’s request for review, so Elster sought review of
the Commissioner’s decision before this Court under 42 U.S.C. §405(g). Elster argued that the
ALJ wrongly concluded that he did not meet the criteria for “mental retardation” in Listing
12.05(C). He also claimed that the ALJ erred by using the grid — a chart which classifies a
claimant as disabled or not disabled based on the claimant’s physical capacity, age, education,
and work experience — without obtaining testimony from a vocational expert. The Court found
that the ALJ did not err in relying on the grid but did err in concluding that Elster did not have an
“additional impairment” as required under Listing 12.05(C). The Court ultimately remanded the
matter to the ALJ for further development of the record on a third issue — whether Elster
evidenced “significantly subaverage general intellectual functioning” (i.e., “mental retardation”)
for purposes of Listing 12.05(C) — which the ALJ did not address.

On March 31, 2003, Elster filed a timely application for fees in the amount of $7,633.12.
See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). The Commissioner challenges Elster’s

entitlement to fees and, alternatively, the reasonableness of the requested amount. On May 6,

2 This order presumes familiarity with the Court’s previous opinion, Elster v.

Barnhart, No. 01 C 4085, 2003 WL 124432 (N.D. Ill. Jan. 13, 2003).

2