limitations also was critical because the VE testified that if any of them existed, they would preclude
or at least “impact” Mr. Sayles’s ability to find work. 2001 WL 1578850, *8. The ALJ’s failure to
provide any explanation for rejecting Mr. Sayles’s asserted limitations was contrary to clear Seventh
Circuit law. See, e.g., Zurawski v. Halter, 245 F.3d 881, 887, 889 (7" Cir. 2001) (the ALJ’s decision
must provide “a logical bridge from the evidence to the [conclusion],” that provides at least a
“glimpse into the [ALJ’s] reasoning”); Powers v. Apfel, 207 F.3d 431, 435 (7" Cir. 2000) (the
deference normally accorded to an ALJ’s credibility findings is premised on the ALJ providing an
explanation so that the reviewing court can assess whether they are supported by substantial evidence
or instead are “patently wrong”). Again, we do not believe that the Commissioner’s defense of the
ALJ’s determination was “substantially justified” in the face of this controlling Seventh Circuit law.

Finally, we are unpersuaded by the Commissioner’s argument that there were grounds in the
record to support the ALJ’s conclusion ~ even if she didn’t provide them. A reviewing court cannot
rectify defects in an ALJ’s decision by “supply[ing] a ground for the agency’s decision” that the ALJ
did not provide. O’Connor v. Sullivan, 938 F.2d 70, 73 (7" Cir. 1991). Likewise, we do not think
that the Court should find the Commissioner’s defense of a clearly defective decision to be
“substantially justified” by looking at a decision the ALJ might have written rather than the one she
in fact wrote.

I.

For the reasons set forth above, the Court finds that Mr. Sayles is entitled to recover
attorneys’ fees under the EAJA. Counsel for plaintiff seeks an award of attorneys’ fees and costs
in the total amount of $7,151.62 (Pl.’s Reply at 7; Pl.’s Ex. C). In determining the amount of fees

to award, the Court takes into consideration the statutory rate of $125.00 per hour, plus any


because the government loses a case, a presumption does not arise that the government’s position
was not substantially justified”). See also Young v. Sullivan, 972 F.2d 830 (7" Cir. 1992); Kolman
v. Shalala, 39 F.3d 173 (7" Cir. 1994); Jackson v. Chater, 94 F.3d 274 (7" Cir. 1996). We find that
to be the case here,

In its summary judgment ruling, this Court pointed out serious shortcomings in the ALJ’s
decision that made it clear that the Commission was not substantially justified in defending it. First,
the Court identified a serious inconsistency in the ALJ’s decision: “the opinion of the [Vocational
Expert] about available work that the ALJ adopted (R. 20, Finding No. 12) was based on a
hypothetical that departs from the factual findings that the ALJ made (R. 20, Finding No. 6).” 2001
WL 1568850, *9. The Court found that the ALJ solicited testimony from a Vocational Expert
(“VE”) that Mr. Sayles could perform work that existed in substantial numbers based on a
hypothetical that assumed Mr. Sayles could have some, but not concentrated, exposure to heights,
and driving motorized vehicles. The AL] adopted the VE’s opinion based on that hypothetical, but
then went on to find that Mr. Sayles could not work at unprotected heights or around moving and
hazardous machinery — which the VE had opined would preclude Mr. Sayles from work that existed
in substantial numbers. /d. at *8. We find it difficult to understand how the Commissioner would
be “substantially justified” in defending a decision that contains this kind of inconsistency on the
central issue in the case.

Second, the Court noted that the ALI’s decision appeared to be based on various credibility
determinations that also were unexplained — such as, the credibility of Mr. Sayles’s assertions
concerning the frequency with which he must urinate, the extent of his depth perception problems,

and the extent to which he must take breaks to rest his eyes. The credibility of those asserted


justifiable cost of living increases to that hourly amount. 28 U.S.C. § 2412(d)(2)(A). The CPI in
October 2000, the month plaintiffs counsel began work on this case, was 174.0, resulting in an
hourly rate of $140.00 per hour. In March 2001, the CPI was 176.2, resulting in an hourly rate of
$141.25. In August 2001, the CPI was 177.5, resulting in an hourly rate of $142.50. The amount
of attorney time devoted to this case is 53.5 hours; the amount of paralegal time billed is one hour.

The Commissioner has not opposed the amount of time spent on the case or the hourly rates
claimed; nor has the Commissioner contested the claimed costs. We find the requested amount
reasonable based on the CPI and the controlling statutory provisions, and the amount of time devoted
to the case reasonable for filing two summary judgment briefs and two briefs on the EAJA petition.

CONCLUSION

Accordingly, the Court grants the plaintiff's motion for an award of attorney’s fees under
EAJA (doc. #20) and directs an award of fees in the amount of $7,151.62, payable to the plaintiff's
attorney, Barry A. Schultz.

ENTER:

YQ, 7 heal:

SIDNEY I. SCHENKIER
United States Magistrate Judge

Dated: May 13, 2002


‘Minute G.der Form (06/97)

United States District Court, Northern District of Illinois

‘Name of Assigned Judge j i Sitting Judge if Other
or Magistrate Judge Sidney I. Schenkier than Assigned Judge
CASE NUMBER 00 C 7200 DATE 5/13/2002
CASE Clifton Sayles vs. JoAnne B. 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
MOTION: of the motion being presented.]
DOCKET ENTRY:
qd) oO Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
(3) im} Answer brief to motion due. . Reply to answer brief due
(4) Oo Ruling/Hearing on set for at
(5) i) Status hearing[held/continued to] [set for/re-set for] on set for __.at
(6) Oo Pretrial conference[held/continued to] [set for/re-set for} on set for at
(7) g Trial[set for/re-set for] on at
(8) Oo [{Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}
COFRCP4(¢m) (General Rule21 OFRCP41(a)(1) [1 FRCP41(a)(2).

ao) i [Other docket entry] ENTER MEMORANDUM OPINION AND ORDER. Plaintiff’s motion

for an award of attorney’s fees under EAJA [doc. #20] is granted. Plaintiff's attorney, Barry A. Schultz

is awarded fees in the amount of $7,151.62.
(il) ff [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

‘No notices required,
ql number of notices.

MAY 4.4 200

Notices mailed by judge’s staff.

Notified counsel by telephone. date dockets

Aeketing deputy init

5/13/2002

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom ff

| deputy’s
(initials

JK UK

Date/time received in < + <4
central Clerk’s Office

railing deputy initials



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

EASTERN DIVISION DOCKETED

CLIFTON SAYLES, MAY 1 4 2002
Plaintiff,

No. 00 C 7200
Magistrate Judge Schenkier

VS.

JO ANNE B. BARNHART,
Commissioner, Social Security Administration,

Defendant.

MEMORANDUM OPINION AND ORDER

The plaintiff, Clifton Sayles, has filed a motion for attorneys fees, pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) (2001). Mr. Sayles is considered a “prevailing
party” under EAJA because this Court reversed and remanded the decision of the Commissioner
denying Mr. Sayles’s application for social security income (“SSI”). Sayles v. Barnhart, No. 00 C
7200, 2001 WL 1568850 (N.D. Ill. Dec. 7, 2001). The Commissioner opposes the motion, arguing
that fees should not be awarded to plaintiff because the Government’s position throughout the
administrative proceedings, as well as the litigation, was substantially justified. For the reasons set
forth below, the Court agrees that the Commissioner’s position in defending the ALJ’s decision was
not substantially justified. We therefore grant the plaintiff's motion for EAJA fees (doc. # 20).!

IL
Under the EAJA, unless special circumstances make an award unjust, a court will award

attorneys’ fees to a prevailing party other than the Government if the position of the United States

'On March 12, 2001, by the consent of the parties to have a magistrate judge conduct all proceedings in this
case, and to enter final judgment, pursuant to 28 U.S.C. § 636(c) (doc. ## 7, 8), the case was reassigned to this Court
(doc. #9),


was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The Commissioner’s position is
substantially justified “if'a reasonable person could think it correct, that is, if it has a reasonable basis
in law and fact.” Marcus v. Shalala, 17 F.3d 1033, 1036 (7" Cir. 1994) (quoting Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988)). The Seventh Circuit has explained that the substantial
justification standard requires that the Government 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.’” United States v. Hallmark Construction Co., 200 F.3d 1 076, 1080 (7° Cir. 2000) (citing
Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 642 (7" Cir. 1987) (quoting Donovan v. DialAmerica
Mkting, Inc., 757 F.2d 1376, 1389 (3d Cir. 1985)).

Under the EAJA, the Government bears the burden of proving that its position was
substantially justified. Hallmark Construction, 200 F.3d at 1079; see also Marcus, 17 F.3d at 1036.
In making a determination of substantial justification, a court may consider the Government’s
litigation position as well as its prelitigation conduct. Marcus, 17 ¥.3d at 1036. EAJA fees may be
awarded if either the Government’s prelitigation conduct or its litigation position is not substantially
justified. /d. However, the district court is to make only one determination for the entire civil
action. /d. This global assessment requires that the district court examine not simply whether the
Government was substantially justified at the beginning or end of the proceedings, but also whether
the Government was substantially justified in continuing to push forward at each stage. Hallmark
Construction, 200 F.3d at 1081. Ifsubstantially justified in its position, the Government will not be
ordered to pay fees under EAJA, even if the plaintiff prevailed in the underlying action. See Berman

y. Schweiker, 713 F.2d 1290, 1295, n. 18 (7" Cir. 1983) (“Congress . . . made clear, . .. that, merely