legal theory; and 3) there is a rational connection between the
facts alleged and the legal theory. United States v. Hallmark
Constr. Co., 200 F.3d 1076, 1080 (7% Cir. 2000). The government
need not have prevailed in order for the Court to find its
position was substantially justified. See Pierce, 487 U.S. at 569
(“[the government] could take a position that is substantially
justified, yet lose.”)

In this case, the ALJ’s, and then the government’s, position
was that Plaintiff retained the functional capacity to perform
light work. However, this conclusion was based upon the answer
the VE gave to a faulty hypothetical, and the ALJ’s failure to
discuss medical evidence that tended to show that Plaintiff's
degenerative eye disease and back pain began long before the date
Plaintiff last met the disability insured status requirements.

Specifically, the ALJ posed a hypothetical to the VE that
presumed that Plaintiff could work a full eight hour day, despite
the fact that Plaintiff and her husband (both of whom the ALJ
found credible) testified that Plaintiff could not work more than
three to four hours each day. Moreover, in assessing the
Plaintiff’s residual functional capacity, the ALJ failed to
develop the record to determine the total length of time during
an eight hour day that Plaintiff could stand, and how frequently
she could lift twenty pounds. This information bears directly on

an individual’s ability to do light work, and yet the ALJ failed


In addition, the Court will award only those fees for time
that is properly documented and reasonably expended. A court may
find that fees are unreasonable if the attorney failed to achieve
a successful result, was inefficient and duplicitous, or
inadequately documented his time. People Who Care, 90 F.3d at
1314. The Court may not, however, “‘eyeball’ the fee request and
‘cut it down by an arbitrary percentage because it seemed
excessive to the court.’” Id. (quoting Spellan v. Bd. of Educ.
for Dist. 111, 59 F.3d 642, 647 (7% Cir. 1995)).

Where the documentation of hours is inadequate, or the
description of services is vague, the Court may reduce or deny
the award accordingly. Webb v. James, 967 F. Supp. 320, 323
(N.D. Ill. 1997). The party opposing a fee petition has a
similar obligation; “[c]ounsel who opposed the fees have a
similar responsibility to state objections with particularity and
clarity.” Ohio-Sealy Mattress, 776 F.2d at 664. “If a defendant
fails to specifically object to the requested attorneys’ fees,
the Court will generally award the requested fees.” Northwestern
Nat.’l Life Ins. Co. of Milwaukee Wis. v. Lutz, 933 F. Supp. 730,
732 (C.D. Tll. 1996).

In this case, Plaintiff’s counsel has submitted a billing
summary detailing his time on this case. The government has
not challenged any entries as unreasonable or improperly

documented. The Court finds that Plaintiff’s request for fees is


substantially justified or that special circumstances make an
award unjust." 28 U.S.C. § 2412(d) (1) (A) (West 2001) (emphasis
added). Pursuant to 28 U.S.C. § 2412(d) (1) (B), a prevailing
party, which demonstrates that the government’s position was not
substantially justified and that no special circumstances exist
that would render an award unjust, must file a fee application to
the Court within 30 days of final judgment, and be supported by
an itemized fee statement. Cummings v. Sullivan, 950 F.2d 492,
496 (7% Cir. 1991).

Defendant does not contest Plaintiff’s prevailing party
status, or argue that special circumstances prevent the fee
award. In addition, Defendant neither attacks Plaintiff's
itemized fee statement as failing to comport with §

2412 (d) (1) (B)’s requirements, nor does it challenge Plaintiff’s
counsel’s hours or rate as unreasonable. Instead, Defendant
devotes its entire brief to arguing that its position, both at
the administrative level and before this Court, was substantially
justified.

To find that the government’s position is substantially
justified, the government must show that its position is
“justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government
bears the burden of demonstrating that 1) there is a rational

basis for the facts alleged; 2) there is a rational basis for the


to elicit any testimony on the topic. This oversight was
particularly troubling, given the unchallenged and credible
testimony that Plaintiff was working in a limited capacity and on
a part-time basis.

The Court also took issue with the ALJ’s statement that
there were no medical records, prior to Plaintiff's last date
insured, substantiating Plaintiff's claim of a demyelinating eye
disease, and back pain. These medical records did, in fact,
exist, and the ALJ’s statement to the contrary demonstrates that
the decision was not based upon substantial evidence. The
Commissioner adopted, and continued to advocate, the ALJ’s
findings throughout the administrative and Court proceedings.

In opposing this Motion, the government takes the position
that its position is, nevertheless, substantially justified,
because the Court did not conclude that the evidence compelled a
finding of disability. But the government’s argument misses the
mark, because it ignores the fact that the ALJ’s decision was not
based upon substantial evidence and ignored evidence favorable to
Plaintiff. In doing so, the ALJ’s decision failed to comport
with well-established caselaw, and even though the ALJ may
ultimately conclude that Plaintiff is not disabled, the decision
to continue to advocate the ALJ’s faulty position was not
substantially justified. Because the Court has concluded that

the ALJ’s conclusion was not reasonably based in fact and law,


v ~

reasonable and well document, and, therefore, awards Plaintiff
$5,154.35, which represents full compensation for all time up to
and including the filing of Plaintiff’s EAJA Reply brief.
CONCLUSION
For the reasons set forth above, the Court awards Plaintiff
$ 5,154.35 in fees and costs.
IT IS HEREBY ORDERED that Plaintiff's Petition for Attorneys

Fees be, and the same hereby is, GRANTED.

Dated: October 3, 2002 ENTER:
ARLANDER KEYS
Unites States Mai ate Judge
8


Minato Order Féln (06197) ” |
United States District Court, Northern District of Illinois

Assigned Jud Sitting Judge If Oth
anor Magitate Judge Arlander Keys thaw Asigned udge
CASE NUMBER 01C771 DATE 10/3/2002
CASE Ellen J. Brasel vs. Larry G. Massanari
TITLE

{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd 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) Q Brief in support of motion due.

8). a Answer briefto motion due___. Reply to answer brief due___.

(4) oO Ruling/Hearing on setfor__at

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

(6) im Pretrial conference[held/continued to} [set for/re-set for]on__—ssetfor_— at.
(e) Oo 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}

OFRCP4(m) OlLocalRule 41.1 OFRCP41{a\(1) OFRCP41(a)(2).

(10) [ — [Other docket entry) Memorandum Opinion and Order entered. Plaintiff’s Petition for Attorneys’
Fees be, and the same hereby is GRANTED. The Court awards Plaintiff $5,154.35 in fees and costs.
Said amount is to be paid to counsel at his mailing address, which is 799 Roosevelt Road, Building 6,
Suite 104, Glen Ellyn, IL 60137. AY}

al) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court.
No notices required.
Notices mailed by judge’s staff.
Notified counsel by telephone.
of | Docketing to mail notices.
Mail AO 450 form.
1}
ao | Copy to judge/magistrate judge, unos joe I
courtroom ry ge £0928
AC deputy’s goss 97s
initials -
Date/time received in’ -|
central Cletk’s Office



the Court finds that Plaintiff is entitled to an award of
attorney fees.

The Court must next determine whether Plaintiff’s request
for fees is reasonable. In Hensley v. Eckerhart, the United
States Supreme Court set forth the standard for courts to employ
when reviewing fee petitions. 461 U.S. 424, 433-35 (1983). The
Court explained that the "most useful starting point for
determining the amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by a reasonable
hourly wage.” Id. at 433. (labeling this equation the lodestar
method.) Pursuant to 28 U.S.C. § 2412(d) (2) (A) (ii), the
“attorney fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of
living or a special factor, such as the limited availability of
qualified attorneys for the proceedings, justifies a higher fee.”

An increase in the cost of living since March 1996, the date
the statute was amended, justifies an increase in the statutory
rate. Plaintiff has submitted evidence that the appropriate
rate, based upon the Consumer Price Index, is $141.25. The
government does not contest the rate, and courts in this district
have agreed that rates in this range are reasonable for the time
period at issue. See Smith v. Barnhart, No. 00 C 7652, 2002 WL
31118326, at *3 (N.D. ql. Sept. 24, 2002). Therefore, the Court

awards the fees at Plaintiff’s counsel’s requested rate.


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

ELLEN J. BRASEL, Case No. 01 C 771
Plaintiff,

Magistrate Judge
Arlander Keys

LARRY G. MASSANARI, Acting

Commissioner of Social Security, LG
Ei hes
bute
Ocr #829
Defendant. 7 2p
Vg

MEMORANDUM OPINION AND ORDER

Currently before the Court is Plaintiff’s Petition for
Attorneys Fees, filed pursuant to the Equal Access to Justice Act
(“EAJA), as amended. 28 U.S.C § 2412 (West 2002). Defendant
argues that the Court should deny the Petition, because the
Commissioner’s position was substantially justified. For the
reasons set forth below, the Court grants Plaintiff’s Petition.

Background

The facts of this case are laid out in substantial detail in
the Court’s Memorandum Opinion and Order of May 8, 2002 and are
only briefly summarized here. In 1988, Plaintiff filed an
application for disability. insurance benefits (“DIB”), claiming
that vision problems rendered her disabled.(R. at 45.) This
claim was denied on April 15, 1988. (R. at 30.) Plaintiff filed
a second application for DIB on January 28, 1997, claiming that

vision problems and severe back pain rendered her disabled and



alleging a disability onset date of December 31, 1985.

The second claim for DIB was denied initially and on
reconsideration. (R. at 70-72, 75.) Plaintiff requested and
received a hearing before Administrative Law Judge Mark Anderson
(“ALJ”) on August 18, 1998. (R. at 25, 78.) Following the
hearing, the ALJ issued an unfavorable decision, finding the
Plaintiff not disabled at any time through September 3, 1998. (R.
at 20.) Plaintiff then filed a request for review of the ALJ’s
decision. (R. at 7.) The Appeals Council denied the request on
December 6, 2000, and the ALJ’s decision stands as the final
decision of the Commissioner. (Id.)

In a decision dated May 8, 2002, this Court found that the
ALJ’s decision was not supported by substantial evidence, and
remanded the case back to the Commissioner. Specifically, the
ALJ failed to fully develop the record with regard to Plaintiff’s
exertional limitations, posed an inaccurate hypothetical to the
Vocational Expert, and ignored medical records tending to support
Plaintiff’s claim of disability.

DISCUSSION

The EAJA requires lower courts to “award to a prevailing
party other than the United States fees and other expenses...
incurred by that party in any civil action (other than cases

sounding in tort) brought by or against the United States .. .,

unless the court finds that the position of the United States was