reasoning to support a conclusion, it was a matter of failing to provide any substantive analysis of
the clairnant’s primary complaint. It was not reasonable for the ALJ to render a decision denying
disability bencfits without assessing Lusher’s primary complaint.

The Commissioner's arguments regarding the reasonableness of her position do not
persuade the court to rule otherwise. For example, according to the Commissioncr, even though
the court criticized the ALJ’s failure to evaluate Lusher’s fibromyalgia and her depression,’ the
ALJ’s position was not unreasonable because the record showed that Lusher “did not receive any
ongoing treatment for either condition between her alleged onset date of disability and her date
last insured.” (Def.’s Resp. at 4.) The implication of this argument is that even though (he court
found that the ALJ impermissibly rejected entire lines of evidence without explanation, the ALJ

could properly explain his decision if given a second chance, The Commissioner's argument

‘The court criticized the ALJ for failing to assess Lusher’s depression, explaining that
“even if Lusher had not sought treatment, that is a factor to consider in assessing the severity of
her depression—it does not excuse the AL) from making the assessment.” (Order of 5.12.04 at
10.) The court went on to state that the regulations required the AL] to complete a Psychiatric
Review Technique Form (“PRTF”) whenever a claimant alleges a mental health impairment,
(id) This statement regarding what the regulations require, ag the Commissioner correctly noted
in her response, is imprecise. More accurately, when the ALJ issued his written opinion on June
30, 2000, the regulations required a PRTF. Effective September 20, 2000, however, the
regulations no longer require the AL) to complete u PRTF. See 20 C.F.R. § 404,1520a(e)(2):
Social Security Rules & Regulations, 20 C.F.2, Parts 404 and 416 Revised Medical Criteria for
Evaluating Mental Disorders and Traumatic Brain Injury, 65 FR 50746, 2000 WL 1173632
(Aug. 21, 2000), Because the regulations no longer require usc of the PRTF, on remand the ALJ
should evaluete Lusher’s depression using the current procedures set forth in 20 C.F.R.

§ 404.1520a. Kenoyer v. Barnhart, No. 01-35469, 2002 WL 31396379, at *1 (9" Cir, Oct. 23,
2002) (unpublished opinion). The court has issued an amended opinion, nunc pro tune, to
correct the imprecision in the order issued on May 12, 2004,

The amended opinion also expressly states what was clearly implied in the original
opinion: that the court granted Lusher’s motion for summary judgment to the extent plaintiff
sought a new hearing, but denied her motion to the extent she asked the court to award her
disability insurance benefits.



the Clerk of Court is directed to enter a judgment in favor of Clyde Ogg, as assignee of plaintiff
Christiana [usher, and against JoAnn Barnhart, Commissioner of Social Security, in the amount
of $5,598.87 for attorney’s fees under the Equal Access to Justice Act.

ENTERED:

pe 2 Tact

NAN R. NOLAN

United States Magistrate Judge

Dated: Septernber 16, 2004

awarded disability insurance benefits, the contingent fee owed to her attorney shall be reduced by
the $5,598.87.



her fibromyalgia and the ALJ’s opinion that she was not disabled, Lusher filed an application for
disability insurance benefits, alleging disability resulting from fibromyalgia J.usher’s case was
remanded for a new hearing due to the ALJ's failure ““to build a rational bridge from the
evidence to the finding that [Lusher] was not totally disabled.’” (Order of 5.12.04 at 7, quoting
Barrett v, Barnhart, 355 F.3d 1065, 1069 (7" Cir, 2004),) The problem was not that the ALJ was
overly broad or overly general in making his evaluation of Lusher’s fibromyalgia—it was thal the
ALJ failed to make an evaluation at all.4 As the court previously explained, the ALJ’s “written
evaluation was void of any substantive discussion of fibromyalgia whatsoever.”* (Order of
5.12,04 at 7-8.)

The ALJ’s failure to provide any substantive evaluation of Lusher’s fibromyalgia renders
the ALJ’s decision unreasonable. The court does not suggest that whenever an AT.J fails to fully
articulate the factual basis for his decision, it necessarily follows that the Commissioner's
position was not substantially justified. See Stein v. Sullivan, 966 F.2d 317, 320 (7TM Cir, 1992);
Sutton y. Chater, 944 F, Supp. 638, 643 (N.D. TI], 1996). However, this case involved more than

a failure to articulate. Lusher’s case was not just a matter of failing to provide sufficient

3Tusher also complained of chronic fatigue syndrome in her application. However, as
explained in the earlier opinion, on appeal Lusher did not argue that the ALJ should have
considered her chronic fatigue syndrome. (Order of 5.12.04 at 3.4.)

‘The ALJ's written evaluation focused solely on Lusher’s cardiomyopathy.

5The court’s main reason for remanding the case for a new hearing was the ALJ's failure
to address Lusher’s fibromyalgia, (Order of 5.12.04 at 7-8.) After determining that remand was
necessary, the court provided further instruction for the new hearing to address certain othor
omissions in the ALJ’s written decision. Specifically, the court directed the ALJ to properly
conduct and explain the RFC assessment, to assess Lusher’s complaints of depression, and to
ensure that hypotheticals posed to the vocational expert include whatever limitations the AT.J
finds credible. (Jd. at 9-10.)



misses the mark. The court recognizes the possibility that on remand, after sufficiently
evaluating Lusher’s alleged disabilities, the ALJ may again deny Lusher benefits, As explained
in Gibson-Jones v. Apfel, 995 F. Supp. 825, 827 n.3 (N.D. ILL. 1998), however, “that does not
change the fact that the ALJ's original position was not substantially justified.” By denying
benefits without evaluating Lusher’s primary complaint, the ALJ issued an opinion that lacked a
reasoned basis, Even if the ALJ’s position on remand is substantially justified, “his original lack
of substantial justification has caused [Lusher] (o incur recoverable expenses.” Id.

The Commissioner also rclics on Jackson v, Chater, 94 P. 3d 274, 279-80 (7 Cir. 1996),
to argue that being wrong on one point does not mean that one’s litigation position for an entire
case lacked substantial justification.’ Context is important, however. Jackson involved the
government’s decision to defend the testimony of a vocational expert in the face of conflicting
evidence. Jd, at 279. Here, the court did not remand the case because the ALJ chose between
conflicting, permissible views of available evidence, See id. at 280, Rather, the remand was
necessary because the ALJ failed to make any assessment of Lusher’s primary complaint, In
light of the Seventh Circuit’s long-established requirement that the ALJ “build a bridge from the
evidence to the conclusion,” Groves v. Apfel, 148 F.3d 809, 811 (7" Cir, 1998), it should have
been cvident to the Commissioner thal no reasonable court could affirm an ALJ’s decision to
deny benefits where the ALJ not only failed to connect the evidence to the conclusion, but failed
to include any substantive discussion of the claimant’s primary complaint whatsoever, See

Brindisi v. Barnhart, No. 00 C 6495, 2003 WL 21696195, at *3 (N.D. Ill. July 21, 2003) (where

"Specifically, in an effort to show that the Commissioner’s overall litigation position was
substantially justified, the Commissioner argues that its opposition o some of the other
arguments plaintiff raised on appeal was both correct and reasonable.

5



ng segue Parr 126899)

United States District Court, Northern District of Tllinois

Name of Assigned Judge Nan R. Nolan Sitting Judge Oruer
or Muglstrate Judge aan Assigned Judye

CASE NUMBER 02 C5298 DATE 9/16/2004
CASE Christina Lusher ys, Jo Anne Bamhart
TITLE

[In the following box (a) indieste the party filing the motion. ¢.y., puintifl, defendant, rd purty plsintill, and (b) stave briefly Ue nature

MOTION: ui'the motion being presented.)

DOCKET ENTRY:

wy 2 Filed motion of [ use listing in “Motion” box above.]

42) Qa Brief in support of motion due

43) o Answer briel te motion due. » Reply to answer brief due___

(4) o Ruling/TMearing on set for at

(ay 0 Status hearing|held/continued to] [sel for/re-set for] on __ set for at

(6) Oo Pretrial conference[held/continued to) (sct lor/reeset for] on set for at .

(7) Oo ‘Trial[set for/re-set for] on at

(8) a (Beneh/Jury trial] [Hearing] held/continued to at

(9) a This case is dismissed [with/without] prejudice and without costs[hy/agreement/pursuant to]

OFRCP4im) OC Local Rule 41.1 OFRCP41(a)(1) OC FRCPA1(a)(2),

(10) MP [Otherdocket entry] Plaintiff's petition for attorney's fees under the Equal Access to Justice Abt
is granted for the full amount requested, $5,598.87, payable to plaintiff's atrorney, Clyde Ogg.
Accordingly, the Clerk of Court is directed to enter a judgment in favor of Clyde Ogg, as assignee of
plaintiff Christiana Lusher, and against JoAnn Barnhart, Commissioner of Social Sceurity, in the amount

; of $5,598.87 for allorney’s fees under the Equal Access to Justice Act.
al) ff (For further detail see order attached to the original minute order.}

Document
Number

©

No notices required, adivined in pen ctu
3

No noviggs required. winkor of nolles

SEP 17 20p,

date docked

Dacketmng to mail notices, Y \

Mail AQ 450 form. Se pene chen deputy ts

Y_ | Notiegs malted hy judtye’s stall!

Notified counsel by telephone.

Copy to judge/magistrate judge,
ores

date aed notige

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= Dattééine roéeived in
central Clerk's Office, railing depaty initials



ALJ completely failed to make reasonable connection between ovidence and conclusion and the
written opinion was so lacking in reasoning that the court could not evaluate reasonableness of
the ALJ’s findings, the ALJ's position lacked substantial justification). Accordingly, the court
finds that the Commissioner’s pre-litigation position, in the form of the ALJ’s written opinion,
lacked substantial justification,

The only remaining issue is whether plaintiff's request for fees is reasonable. Plaintiff's
counsel submitted a properly documented request for attomey’s fees, delineating the individual
dates counsel worked on Lusher’s case, a description of work performed on each date, and the
number of hours spent. Moreover, the Commissioner raised no objections to number of hours
plaintiff's attorney expended, nor to the rates requested. The court therefore grants plaintiff's
request for fees for the full amount requested. Sample v. Shalala, No. 91 C 2191, 1994 WL
66144, at *3 (N.D. Ill. Mar. 2, 1994) (granting petition for fees, including request for a cost of”
living adjustment to the statutory rate, where Commissioner raised no objections). The 27.40
hours billed in 2002 shall be paid ai a rate of $146.25/hour, subtotaling $4,007.25; the 10.70
hours billed in 2003 shall be paid at a rate of $148.75/hour, subtotaling $1,591.62." The court
thus awards plaintiff a total of $5,598.87 in attorney’s fees under the EAJA,

CONCLUSION

Plaintiff's petition for attorney’s fees under the Equal Access to Justice Act is granted for

the full amount requested, $5,598.87, payable to plaintiff's attorney, Clyde Ogg.’ Accordingly,

‘Plaintiff's requested hourly rate of $146.25 for 2002 and $148.75 for 2003 reflects the
statutory rate adjusted for an increase in the cost of living,

*Recause plainti(l has a contingency fee agreement with her attornoy, plaintiff requested
that any sum awarded for attorney’s fees be paid directly to her attorney. In the event plainti/l is

6



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

EASTERN DIVISION DOCKETED
Ser 1 ¢ 2004
CHRISTIANA M. LUSHER, )
)
Plaintiff, )
)
vs. ) Case No, 02 C 5298

) Magistrate Judge Nan R, Nolan
JO ANNE 8B, BARNHART, Commissioner )
of Social Security, )
)
Defendant. )

MEMO’ lid ER

On May 12, 2004, this court granted summary judgment in favor of plaintiff Christiana
Lusher to the extent she sought to have her case remanded to defendant JoAnn Barnhart, the
Commissioner of the Social Security Administration (the “Commissioner”), for anew
administrative hearing regarding plaintifl’s application for disability insurance benefits.' (Order
of May 12, 2004 at 1.) This matter is now before the court on plaintiff's petition for attorney’s
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). Under the
EAJA, the district court may award attorney’s fees if “(1) the claimant is a ‘prevailing party’;

(2) the government was not substantially justified; (3) no ‘special circumstances make an award
unjust’; and (4) the fee application is submitted {o the court within 30 days of final judgment and
is supported by an itemized statement.” Golembiewski v, Barnhart, No. 03-3382, 2004 WL

1925425, at *1 (7" Cir, Aug. 31, 2004). In opposing Lusher's petition for attorncy’s fees, the

‘The court denied plaintiff's motion for summary judgment to the extent she asked the
court to reverse the Commissioner’s decision denying her application and to award her disability

insurance benefits. -



government’s sole argument is that the Commissioner’s position was substantially justified. As

explained below, the court disagrees, and thus grants Lusher’s petition for attomey’s fees under

the EAJA.
DISCUSSION

Fees may be warranted under the EAJA “if elther the government’s pre-litigation conduct
or its litigation position are not substantially justified.” Golembiewski, 2004 WL 1925425, at
*2. “A decision by an ALJ constitutes part of the agency’s pre-litigation conduct.” Jd. The
Commissioner’s position need not be correc to be substantially justified, but it must be
reasonable. Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). As the Seventh Circuit recently
reiterated, “[t]he Commissioner's position is substantially justified if her conduct has a
‘reasonable basis in law and fact, that is, if a reasonable person could believe the position was
correct.’” Golembiewski, 2004 WL 1925425, at *2 (citations omitted), Thore is no presumption
under the BAJA that the prevailing party is entitled to fees. United States y. Hallmark
Construction, Co., 200 F.3d 1076, 1079 (7" Cir, 2000). However, it is the Commtissioner’s
burden to establish that her position was substantially justified. Golembiewsk!, 2004 WL
1925425, at "2. According to the Seventh Circuit, 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 propounded.” Jd. (citing Hallmark, 200 F.3d at 1080),

Here, there was not a reasonable connection between the facts Lusher alleged regarding

“Although the district court can consider both pre-litigation conduct and litigation
conduct, the court makes only one determination for the entire civil action regarding whether the
gavernment was substantially justified, Golemblewski, 2004 WL 1925425, at * 2.

2