IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

KATHLEEN BRISCOE, o/b/o 

NELSON TAYLOR, deceased, 

 Plaintiff, 

 v.

 JO ANNE B. BARNHART, 

 Commissioner of Social Security 

 Defendant. 

 

)

)

)

) Case No. 03 C 2762

)

) Magistrate Judge Morton Denlow

)

)

) 

)

)

MEMORANDUM OPINION AND ORDER

This case comes before this Court on Plaintiff Kathleen Briscoe’s (“Plaintiff”) motion

for attorney’s fees and costs against Jo Anne B. Barnhart, Commissioner of Social Security

(“Commissioner”), pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.

 The Seventh Circuit Court of Appeals agreed with this Court’s conclusion that the ALJ’s

finding that Plaintiff was not disabled prior to March 31, 1991, was not supported by

sufficient evidence. However, the Seventh Circuit vacated this Court’s judgment instructing

the Commissioner to award benefits to Plaintiff, and ordered a remand for further

administrative proceedings. The principal issues are whether the Commissioner was

substantially justified in its legal and factual positions, and whether the Plaintiff’s fee request

is reasonable. This Court grants EAJA fees to Plaintiff’s counsel in the amount of
2

$23,929.23 because the Court finds the Commissioner’s position was not substantially

justified.

I. BACKGROUND FACTS

This case has a long history. Plaintiff, who is now deceased and represented by his

sister, Kathleen Briscoe, applied for Supplemental Social Security Income (“SSI”) benefits

in 1993 and the Social Security Administration (“Administration”) awarded benefits effective

the date of his application. In 1996, Plaintiff filed an application for disability insurance

benefits (“DIB”) claiming disability as a result of poor circulation in his legs and alleging an

onset date of March 1, 1987. Plaintiff’s application was denied and he requested a hearing

before an Administrative Law Judge (“ALJ”). The ALJ found that Plaintiff did not have a

severe impairment on or before March 31, 1991, when his insured status expired and,

therefore, Plaintiff was not entitled to DIB. Plaintiff requested a review of the ALJ’s

decision, which the Appeals Council denied.

A. FIRST JUDICIAL REVIEW.

Plaintiff sought judicial review. Magistrate Judge Arlander Keys reversed the ALJ’s

decision and remanded the case for further proceedings. Judge Keys found that the ALJ’s

decision was not supported by substantial evidence because it failed to apply Social Security

Ruling 83-20 (“SSR 83-20") and the ALJ failed to fully develop the record. Taylor v.

Massanari, No. 00 C 5643, 2001 WL 1035286, at *9 (N.D. Ill. Sept. 7, 2001). 
3

The ALJ held a supplemental hearing on November 1, 2002, and received testimony

from a medical expert, a vocational expert, and Plaintiff’s domestic partner, Lola LaweTaylor (“Lawe-Taylor”). On January 7, 2003, the ALJ issued his decision, which found that

the Plaintiff was not disabled prior to January 7, 1994, and concluded that Plaintiff was

ineligible for DIB. 

B. SECOND JUDICIAL REVIEW.

Again, Plaintiff sought judicial review. This Court reversed the ALJ’s denial of

benefits, finding that it was not supported by substantial evidence. Briscoe ex rel Taylor v.

Barnhart, 309 F.Supp.2d 1025 (N.D. Ill. 2004). This Court determined that the ALJ had

failed to apply the analysis mandated by SSR 83-20. Furthermore, the Court found that the

ALJ proceeded without Plaintiff’s 1993 SSI file, failed to consider Plaintiff’s testimony

from1998, and should not have rejected Lawe-Taylor’s testimony. This Court remanded the

case for an award of benefits based on the Commissioner’s obduracy.

C. SEVENTH CIRCUIT APPEAL.

The Commissioner then appealed this Court’s ruling to the Seventh Circuit Court of

Appeals. The Seventh Circuit found that the ALJ’s decision was not supported by substantial

evidence for a number of reasons. Taylor v. Barnhart, 425 F.3d 345, 351-55 (7th Cir. 2005).

However, the Seventh Circuit held that obduracy of the Commissioner was not a ground on

which to award benefits. Rather, only evidence properly in the record may support a finding
4

of disability. The Seventh Circuit vacated the judgment of this Court and remanded the case

for further proceedings in order to allow for additional evidence to be collected. Id. at 357.

D. THE EAJA FEE PETITION.

Plaintiff submitted an EAJA fee application for the work performed by Barry A.

Schultz, who represented the Plaintiff before this Court and the Court of Appeals. The

Plaintiff assigned any award of attorney’s fees to her attorney, Barry A. Schultz. Pl. Memo.

Ex. C. The Commissioner contends that the Court is not permitted to award fees for

Plaintiff’s efforts because the Commissioner’s position was substantially justified.

Furthermore, the Commissioner contends that, if this Court awards fees, the fee request

should be reduced to reflect the Plaintiff’s limited success. 

II. EAJA FEE AWARD STANDARD

The EAJA directs a court to award attorney's fees and other expenses to private parties

who prevail in litigation against the United States if, among other conditions, the

Government's position was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A) - (B).

The position of the United States includes both its position during litigation and its prelitigation position during the administrative proceedings. 28 U.S.C. § 2412(d)(2)(D). The

substantial justification standard requires the government to show 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, 200 F.3d 1076, 1080 (7th Cir. 2000). A
5

decision by an ALJ constitutes part of the Commissioner’s pre-litigation conduct. Sutton v.

Chater, 944 F.Supp. 638, 639 (N.D. Ill. 1996). When errors are made by the ALJ, the

Commissioner is held accountable. Cummings v. Sullivan, 950 F.2d 492, 496 (7th Cir.1991).

A. THE PLAINTIFF IS A PREVAILING PARTY.

In order to receive an EAJA award, an EAJA applicant must first be a prevailing

party. 28 U.S.C. § 2412 (d) (1) (A). “[P]laintiffs may be considered ‘prevailing parties’ for

attorney’s fees purposes if they succeed on any significant issue in litigation which achieves

some of the benefits the parties sought in bringing the suit.” Hensley v. Eckerhart, 461 U.S.

424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978)). “The

touchstone of the prevailing party inquiry must be the material alteration of the legal

relationship of the parties in a manner which Congress sought to promote in the fee statute.”

Texas State Teachers Assn., v. Garland Indep. School Dist., 489 U.S. 782, 792-3 (1989).

Farrar v. Hobby, 506 U.S. 103, 111-12, 113 (1992). 

In this case, the decision by the Seventh Circuit imposes upon the ALJ a duty to apply

the analytical framework outlined in SSR 83-20 to determine the onset date of disability.

Briscoe, 425 F.3d at 352. Second, the Seventh Circuit requires the ALJ, on remand, to

address the testimony of Taylor. Id. at 354. Third, the ALJ must present reasons why, if he

so chooses, to reject the testimony of Taylor. Id. at 355. Fourth, the Seventh Circuit held

that the ALJ must secure additional medical evidence in the form of the 1993 SSI application

file, and if lost, the ALJ must explain why he proceeds without the file. Id. Although the
6

Seventh Circuit rejected Plaintiff’s “obduracy argument” as a ground to award benefits, a

material alteration of the legal relationship between the parties has occurred. Garland, 489

U.S. at 792-3. The decision of the Seventh Circuit makes Plaintiff a “prevailing party”

because the Commissioner’s prelitigation and litigation position, when viewed as a whole,

was not justified. Obtaining a sentence - four judgment reversing the Commissioner’s denial

of benefits and remanding the case entitles Plaintiff to prevailing party status. Shalala v.

Schaefer, 509 U.S. 292, 302 (1993). 

B. THE COMMISSIONER’S POSITION WAS NOT SUBSTANTIALLY 

 JUSTIFIED.

The Commissioner has the burden of proving her position had a reasonable basis in

law and fact. Cummings, 950 F.2d. at 495. The standard of “substantially justified” is

satisfied if there is a genuine dispute or if reasonable people could differ as to the

appropriateness of the contested action. Pierce v. Underwood, 487 U.S. 552, 565 (1988).

“While the parties' postures on individual matters may be more or less justified, the EAJA

– like other fee – shifting statutes-favors treating a case as an inclusive whole, rather than as

atomized line items.” Comm’r, INS v. Jean, 496 U.S. 154, 161-162 (1990). This Court is

required to make a global assessment to determine whether the Commissioner was

substantially justified in continuing to push forward at each stage. Hallmark, 200 F.3d at

1081. This Court must evaluate the factual and legal support for the Commissioner’ position

throughout the entire proceeding. Id. at 1080.

 The Commissioner's success on the merits is relevant to the “substantial justification”
7

determination. In Pierce, the Supreme Court observed: “Conceivably, the Government could

take a position that is not substantially justified, yet win; even more likely, it could take a

position that is substantially justified, yet lose. Nevertheless, a string of losses can be

indicative; and even more so a string of successes.” Pierce, 487 U.S. at 569. When

considering the issue of EAJA fees, this Court must re-examine the factual and legal

circumstances of the case from a different perspective than used at any other stage of the

proceeding. Hallmark, 200 F.3d at 1080.

Where an ALJ does not abide by the plain requirements of the Rulings of the Social

Security Administration and the Commissioner opposes reversal and remand, the

Commissioner’s position is not substantially justified. Rice v. Apfel, 16 F.Supp.2d 971, 974

(N.D. Ill. 1998); Butts v. Bowen, 775 F.Supp. 1167, 1172 (N.D. Ill. 1991). An ALJ’s failure

to develop the record to support a decision to deny benefits leads to the conclusion that the

ALJ did not have a reasonable basis in fact and thus was not substantially justified. GibsonJones v. Apfel, 995 F.Supp. 825, 827 (N.D. Ill. 1998). Finding that the ALJ’s decision was

not substantially justified is sufficient for the court to award EAJA fees to the plaintiff.

Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). 

In the instant case three courts strongly disapproved of the Commissioner’s position,

twice at the District Court, and once at the Seventh Circuit. Following the ALJ’s first denial

of DIB, Judge Arlander Keys found that the ALJ had not supported his decision with

substantial evidence. See Taylor, No. 00 C 5643, 2001 WL 1035286, at *9. Judge Keys
8

found that the ALJ had failed to apply SSR 83-20 when he rejected the Plaintiff’s testimony

based solely on a lack of objective proof of Plaintiff’s alleged onset date. Judge Keys further

found the ALJ lacked substantial evidence when he failed to consult Plaintiff’s 1993 SSI

application and provided no grounds for proceeding without it. 

Following remand and a second denial of benefits by the ALJ, this Court again held

that the ALJ’s decision was not supported by substantial evidence. Briscoe ex rel Taylor,

309 F.Supp.2d at 1043. This Court found that the ALJ failed to adhere to Judge Keys’

instructions to apply SSR 83-20 because the ALJ (1) did not determine whether the alleged

onset date was inconsistent with the medical evidence; (2) did not obtain the 1993 SSI file,

or alternatively, explain why he proceeded without it, and (3) did not properly consider

Plaintiff’s testimony. Furthermore, this Court found that the ALJ’s credibility determination

of Lola Taylor was patently wrong. 

On appeal, the Seventh Circuit also found that the ALJ’s decision was not supported

by sufficient evidence. Briscoe, 425 F.3d at 355. According to the Seventh Circuit, the ALJ

did not explain how he reached his conclusion concerning Plaintiff’s residual functional

capacity (“RFC”). Id. at 352. Moreover, the record contains no evidence that supports the

ALJ’s description of the Plaintiff’s pre-1994 RFC. Id. The Seventh Circuit further held that

although the ALJ consulted with medical experts, the ALJ did not follow the instructions

given in SSR 83-20. Id. at 353. The Seventh Circuit also held that the ALJ improperly failed

to consider the testimony of the Plaintiff in violation of the Administration’s rules. Id. at
9

354. Finally, the Court found that the ALJ’s adverse credibility determination against

Taylor was wholly unsupported by the record and the ALJ completely failed to consider the

1993 SSI application file, which was crucial to developing a supportable disability finding.

Id. at 355. 

With this lengthy, and somewhat unusual history in mind, this Court finds that the

Commissioner’s position was not substantially justified. The ALJ had an opportunity to

follow Judge Keys’ clear instructions on the initial remand. The ALJ failed to do so. The

Commissioner’s string of defeats, and her inability to remedy her position, are indicative of

a stance completely lacking in justification. 

C. THE PLAINTIFF’S SUCCESS WAS NOT LIMITED AND HER FEE

 REQUEST SHOULD NOT BE REDUCED.

Once it is established that Plaintiff is entitled to an EAJA award, the Court must then

examine the reasonableness of the EAJA fees claimed. Koswenda v. Flossmoor School

District , 227 F.Supp.2d 979, 984-85 (N.D. Ill. 2002). The Court has wide discretion in

determining an award of attorney fees under the EAJA. Hensley, 461 U.S. at 437. However,

Hensley provides that where a plaintiff achieves only partial or limited success, a reduction

of fees may be appropriate. Id. at 436. 

This Court has carefully examined the Plaintiff’s fee petition and finds that it

is reasonable and justified. Plaintiff seeks $7,834.02 for work done on Plaintiff’s District

Court case. Plaintiff further seeks $13,935.71 for hours spent on appeal. Plaintiff further

seeks a supplemental EAJA award in the amount of $2,464.00 to cover time spent in
10

connection with her EAJA petition. The Commissioner does not object to the time expended,

except that the Plaintiff’s initial fee request includes $304.50 in duplicate time. Plaintiff

agrees that the fee request reflects a $304.50 error. This Court finds that Plaintiff’s fee

request, reflecting this reduction, in the amount of $23,929.23, is reasonable and justified.

The Commissioner argues, however, that because the Seventh Circuit remanded

Plaintiff’s claim for further proceedings, rather than a remand for an award of benefits,

Plaintiff only achieved limited success. As Plaintiff argues, a remand for further proceedings

is not evidence of limited success. Briscoe, 425 F.3d at 357. Although the ALJ may

ultimately deny a petitioner her benefits, it does not change the fact that the ALJ’s original

position was not substantially justified. Gibson-Jones, 995 F.Supp. at 827. It would be

unfair to require a plaintiff to appeal her denial of benefits and not award attorney’s fees

because the Commissioner is given a second chance to support her position. Id. 

Where a plaintiff has obtained excellent results, her attorney should fully recover his

fees. Hensley, 461 U.S. at 434. The critical factor is the degree of success obtained. Id. The

Hensley court further found that there is no precise rule for making these fee reduction

determinations and the district court has the necessary discretion to make this judgment. Id.

at 436-37. The district court must make it clear that it has considered the relationship

between the fee awarded and the results obtained. Id. at 437.

Although a reduction of fees may be appropriate where a plaintiff only achieves a

partial or limited success, when a plaintiff’s claims for relief involve a common core of facts
11

or are based on related legal theories, the lawsuit cannot be viewed as a “series of discrete

claims.” Hensley, 461 U.S. at 435. In these cases, the fee award should not be reduced

because the plaintiff failed to prevail on every claim in the suit. Id. at 435. The Court must

look to the totality of the success, rather than on the individual successes or failures of each

claim. Work performed on failed claims is compensable if the research and arguments fall

within the same common core of facts as the successful claim and are presented reasonably.

Jaffe v. Richmond, 142 F.3d 409, 413-414 (7th Cir. 1998); Flaherty v. Marchand, 284

F.Supp.2d 1056, 1061 (N.D. Ill. 2003). 

In this case the obduracy issue was factually intertwined with Plaintiff’s other claims.

All of Plaintiff’s claims stem from the fact that the ALJ did not support his decision with

substantial evidence. The obduracy issue only involved the question of relief. The Seventh

Circuit granted relief in the form of a remand. This represents a substantial victory for

Plaintiff. Accordingly, no fee reduction is necessary because the Plaintiff achieved an

outstanding result in obtaining a remand.
12

III. CONCLUSION

For the foregoing reasons, Plaintiff’s application for fees and costs is granted.

Plaintiff has assigned her claim for EAJA fees to her counsel. The Clerk of the Court

is directed to enter a judgment in favor of Barry A. Schultz and against Jo Anne B.

Barnhart, Commissioner of Social Security, in the amount of $23,929.23, for attorney’s

fees and court costs pursuant to the Equal Access to Justice Act. Payment of fees is to

be made to Plaintiff’s attorney, Barry A. Schultz.

SO ORDERED THIS 24TH DAY OF FEBRUARY, 2006.

_____________________________________

MORTON DENLOW

UNITED STATES MAGISTRATE JUDGE
13

Copies mailed to: 

Counsel for Plaintiff:

Barry A. Schultz

The Law Offices of Barry A. Schultz, P.C.

1609 Sherman Ave., Suite 205

Evanston, IL 60201

Counsel for Defendant:

Mona Ahmed

Assistant Regional Counsel

Social Security Administration

200 West Adams Street, Suite 3000

Chicago, Illinois 60606