suffered from seizures and a psychological impairment, which may or may not be linked.
He also has a brain tumor which, again, may or may not be linked to his other
impairments. All of these questions were left unanswered by the medical evidence.
Plaintiffs condition has resulted in a history of psychotic episodes and hallucinations.
His condition drove him to attack his father on one occasion. The medical expert the
Commissioner employed in this case testified thar plaintiff's condition met the listing of
impairments, meaning that it was disabling.

In his opinion, the ALJ rejected the medical expert’s assessment, finding it
conflicted with the medical evidence. As, this court found, however, some of that
evidence was out of date, and none of it addressed the questions that are so obviously
raised by plaintiff's condition. Specifically, the court found:

While portions of the ALJ’s handling of the question of whether plaintiff's
impairment meets the Listings appear to be sound, others are based on
mischaracterizations of the record. There is no way for the court to tell
which informed the ALJ’s opinion more. While we may not necessarily
disagree with the ALJ’s conclusion, we cannot adequately evaluate the
ALJ’s reasoning given these deficiencies.

The record in this case is rather poor, owing perhaps to plaintiff's
refusal of treatment. That may well be tied into his psychological
impairment. It may be that the pineal tumor has an affect on plaintiffs
judgment, as Dr. Davis suggested. See 20 CFR §$ 404.1530(c); 416.930
(consideration of mental limitations in refusal to follow treatment). These
questions appear to be very significant in this case, but unfortunately, they
were not adequately addressed in the record. Although a claimant has the
burden to prove disability, the ALJ has a duty to develop a full and fair
record. Smith v. Apfel, 231 F.3d 433, 437 (7" Cir. 2000). Failure to fulfill
this obligation is “good cause” to remand for gathering of additional
evidence. Jd. In this case, certainly, a more recent psychological
examination that addresses these concerns would be in order. In addition,



In assessing a claim for fees under the EAJA, the court must consider both the
government’s litigation and pre-litigation conduct, and make one determination as to
whether the position throughout the entire process was substantially justified. Id.;
Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir.1994). The court does not make separate
determinations regarding each stage but “arrive[s] at one conclusion that simultaneously
encompasses and accommodates the entire civil action.” Jackson, 94 F.3d at 278. Thus,
“fees may be awarded in cases where the government's prelitigation conduct was not
substantially justified even though its litigating position may have been substantially
justified and vice versa.” Marcus, 17 F.3d at 1036.

In addition, as the court explained in Hallmark Constr., “there is also a certain
element of policy involved in the award of attorney's fees under the EAJA.” 200 F.3d at
1080. “The potential threat of having to pay for the litigation costs of the opposing party
may serve as an encouragement to government agencies to investigate, prepare and
pursue litigation against private parties in a professional and appropriate manner.” Id.
The court also felt that possible fee awards would encourage private parties to “assist in
the valuable public service [of] improving the efficiency of government operations.” Id.

After examining the record, this court granted plaintiff's motion for a remand.
More specifically, the court found that the medical record was poorly developed, despite
the fact that it was 450 pages long and covered twenty years. The vast majority of the

evidence was at least ten years old. Nevertheless, the record did demonstrate that plaintiff



some type of medical evidence regarding plaintifi’s pineal tumor and its

effects would be as well. Then, given that information, a medical expert

could be called upon to render a better-informed opinion as to whether

plaintiff's condition meets the listings.
(Memorandum Order, 12-13).

In the court’s view, the record in this case-lengthy though it may have been-cried
out for further development. The evidence raised far more questions about plaintiffs
condition than it answered. Certainly, short shrift was given to plaintiffs brain tumor and
its possible affect on plaintiff's seizure and psychological disorders. The administrative
proceedings in this case lasted nearly five years: there was ample time and opportunity
for the Commissioner to address to deficiencies in the medical record. The lack of
development of the record became all the more significant in view of the Commissioner’s
medical expert opining that plaintiff was disabled under the listings. In order to refute
that finding, the ALJ was forced to rely on ten-year-old evidence; there was also some
mischaracterization of evidence. Our sense in reviewing the decision in view of the
record was that far more speculation occurred than should have been necessary. A fee
award would serve the public policy concerns discussed in Hallmark Constr. and perhaps
encourage better development in the future. In view of these factors, the court finds that

the government’s position was not substantially justified. Accordingly, we find the

plaintiff entitled to an award of attorney’s fees under EAJA in the amount of $5,761.25.



Minute Order Form (06/97)

United States District Court, Northern District of Ilinois

Name of Assigned Judge Edward A. Bobrick Sitting Judge if (Other
or Magistrate Judge . than Assigned Judge
CASE NUMBER 01 C 8785 DATE 9/3/2002
CASE James Driura vs. Jo Anne Barnhart
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
MOTION: of the motion being presented. }
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) oO Ruling/Hearing on set for at
(5) a Status hearing[held/continued to] [set for/re-set for] on set for at
o oa Pretrial conference[held/continued to] [set for/re-set for] on___sct for _at .
mM a Trial[set for/re-set for] on _ at
(8) Oo {Bench/Jury trial] [Hearing] held/continued to at _
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
COFRCP4(m) OLocal Rule 41.1 COFRCP41(a\(1) OO FRCP41(a)(2).
ao) [Other docket entry] Enter Memorandum Order. Petition of plaintiff James Dziura for attorney’s
fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) is granted.
(1) [For further detail see order attached to the original minute order.]
No notices required, advised in open court. [
2
No notices required. number or notices:
wv | Notices mailed by judge’s staff.
‘Notified counsel by telephone,
Docketing to mail notices.
Mail AO 450 form, : _
Copy to judge/magistrate judge.
courtroom
Hv deputy's
initials —.
Date/time received in
central Clerk's Offize railing deputy intials



Ill. CONCLUSION

For the foregoing reasons, the plaintiff's petition for an award of attorney’s fees

under EAJA is GRANTED.

ENTERED: OD ate Aeallecn

EDWARD A. BOBRICK
U.S. MAGISTRATE JUDGE

DATE: September 3, 2002



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

EASTERN DIVISION
JAMES DZIURA, )
)
Plaintiff, )
)
vs. )
) No. 01 C 8785
JO ANNE BARNHART, Commissioner ) Edward A. Bobrick,
of Social Security, ) Magistrate Judge
)
Defendant. ) ges.
“TE!
8 4 2002

MEMORANDUM ORDER

Before the court is the petition of plaintiff James Dziura for attorney’s fees under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).

Plaintiff filed an application for DIB and SSI on December 18, 1996, claiming he
was disabled since April 11, 1992, due to a seizure disorder. His application was denied
at all levels of administrative review, culminating in an unfavorable decision by an
administrative law judge (“ALJ”) following an administrative hearing. The ALJ found
that plaintiff was not disabled because he could perform medium work. The ALJ’s
decision became the final decision of the Commissioner when the Appeals Council
denied plaintiff's request for review of the decision on September 19, 2001. (R. 6-7).
Thereafter, plaintiffsought judicial review in the federal district court, seeking to overturn

or remand the decision. This court granted the plaintiff's motion for remand, based on

te


the poorly developed medical record, and some mischaracterization of evidence on the
ALJ’s part. Plaintiff now seeks an award of fees under AJA.

Under EAJA, “a court shall award to a prevailing purty other than the United States
fees and other expenses . . . incurred by that party in any civil action . . . brought by or
against the United States . . . unless the court finds that the position of the United States
was substantially justified or that special circumstances make an award unjust.” 28
U.S.C. § 2412(d)(1)(A). In this case, the government docs not dispute that plaintiff was
the prevailing party; the only issue is whether the government’s position was
“substantially justified.” The government bears the burden of showing that its position
was substantially justified. United States v. Hallmark Constr. Co., 200 F.3d 1076, 1079
(7th Cir.2000); Jackson v. Chater, 94 F.3d 274, 278 (7th Cir.1996). A position could be
incorrect and still be considered substantially justified. Pierce v. Underwood, 487 U.S.
552, 566 n.2, 108 S.Ct. 2541, 2550 n.2 (1988). The government’s position is
“substantially justified” where it is “justified in substance or in the main — that is, justified
to a degree that could satisfy a reasonable person.” Jd. At 565, 108 S.Ct. at 2550. Courts
have also described “substantial justification” as requiring that the government’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.” Hallmark Constr., 200 F.3d at 1080 (citations and

quotations omitted).