McGrath v. Astrue
Filing
35
MEMORANDUM OPINION AND ORDER: Signed by the Honorable Harry D. Leinenweber on 9/27/2012:Mailed notice(wp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMOTHY JAMES McGRATH,
Plaintiff,
Case No. 11 C 2125
v.
Hon. Harry D. Leinenweber
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff Timothy McGrath’s (“McGrath”)
Motion for Attorney’s Fees under the Equal Access to Justice Act,
28 U.S.C. § 2412.
For the reasons stated herein, Plaintiff’s
Motion is granted.
I.
BACKGROUND
In an opinion dated April 12, 2012, the Court ruled on
Plaintiff Timothy McGrath’s Motion to Reverse or Remand the
Commissioner
disabled.
of
Social
Security’s
decision
that
he
is
not
The majority of the relevant facts of this case are
set out in that opinion.
The Court remanded the case so that the
Administrative Law Judge (the “ALJ”) could consider new evidence
that became available after the ALJ had issued her decision.
As
to McGrath’s substantive challenges to the ALJ’s decision, the
Court ruled in favor of the Commissioner on three issues, but
ruled in favor of McGrath and remanded on the final issue.
That
ruling is now the basis for his request for attorney fees under
the Equal Access to Justice Act (the “EAJA”).
II.
LEGAL STANDARD
Under the EAJA, a court may award costs and attorneys’ fees
to the prevailing party in a civil suit against the government,
but
only
if
the
“substantially
circumstances”
“position
justified”
that
make
of
the
and
such
an
United
there
award
States”
are
no
unjust.
was
not
“special
28
U.S.C.
§ 2412(d)(1)(A).
There is no dispute here that McGrath was the
prevailing
in
party
the
underlying
suit,
nor
is
there
any
contention by the Government that there are special circumstances
precluding an award of attorneys’ fees.
The only issue for
determination, therefore, is whether the Government’s position in
the underlying suit was “substantially justified.”
To be substantially justified, the Government’s position
need not be “‘justified to a high degree,’ but rather ‘justified
in substance or in the main’ – that is, justified to a degree
that could satisfy a reasonable person.” Pierce v. Sullivan, 487
U.S. 552, 565 (1988).
The position is substantially justified
“if it has a reasonable basis in fact and law.”
Astrue, 561 F.3d 679, 683 (7th Cir. 2009).
Stewart v.
In the Social
Security context, the “position of the United States” includes
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the
Commissioner’s
and
pre-litigation
conduct, as well as the ALJ’s decision itself.
Id.; 28 U.S.C.
§ 2412(d)(2)(D).
litigation
position
It is the Commissioner’s burden to show that
the Government’s position was substantially justified.
Stewart,
561 F.3d at 683.
III.
ANALYSIS
As noted above, on April 10, 2012, the Court remanded the
ALJ’s decision for two reasons.
First, the Court remanded the
case so that the ALJ could consider new evidence that was not
available at the time of the original hearing.
This type of
remand is considered a “sentence six remand” under 42 U.S.C.
§ 405(g).
Melkonyan v. Sullivan, 501 U.S. 89, 100.
Because
sentence six remands are not considered “final judgments” for
purposes of the EAJA that portion of the Court’s ruling is not
currently at issue.
See id.
The second reason for remand does
raise a question under the EAJA, and is described below.
A.
Whether the Commissioner’s Position
is Substantially Justified
In the April 10 opinion, the Court rejected three out of
four of McGrath’s substantive challenges to the ALJ’s decision,
but found merit in the final challenge and reversed and remanded
on that basis.
When determining whether McGrath was disabled,
the ALJ followed the five-step analysis set out in 20 C.F.R.
§ 404.1520(a)(4).
The Court found no significant problems with
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the
ALJ’s
analysis
in
the
first
reversible error at step five.
four
steps,
but
did
find
The Court held that the ALJ
failed to satisfy her burden of showing that McGrath could
perform other jobs in the national economy.
relied
on
the
Medical-Vocational
Guides
Because the ALJ
without
making
a
determination that McGrath’s non-exertional limitations were not
substantial,
her
position
–
and
therefore,
that
of
the
Commissioner – was not substantially justified.
To find a claimant not disabled, step five requires the ALJ
to show that the claimant can perform some other job in the
national economy.
Id.
The ALJ may do so by applying the
Medical-Vocational Guidelines, commonly called the grids. Walker
v. Bowen, 834 F.2d 635, 641 (7th Cir. 1987).
Non-exertional
limitations, however, are not factored into the grids.
Luna v.
Shalala, 22 F.3d 687, 691 (7th Cir. 1994). Where a non-exertional
limitation “might substantially reduce the range of work an
individual can perform,” the ALJ is precluded from relying on the
grids and must consult with a vocational expert.
Id.
The burden
of showing that a non-exertional limitation is not substantial
rests on the ALJ.
Lawrence v. Astrue, 337 F.App’x. 579, 584 (7th
Cir. 2009).
The ALJ failed to meet that burden.
McGrath has non-
exertional limitations in the form of vision problems relating to
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migraines and photophobia.
The ALJ, therefore, could only rely
on the grids if McGrath’s vision problems did not substantially
reduce the range of work he could perform.
In her decision,
however, the ALJ made no mention of whether or how she determined
that this limitation was not substantial, and instead rested on
assumption.
The Court, therefore, held that the ALJ’s reliance
on the grids was not supported by substantial evidence.
McGrath
v. Astrue, 2012 U.S. Dist. LEXIS 50546, at *23 (N.D. Ill.
April 10, 2012).
Because the ALJ did not demonstrate that
McGrath’s vision problems were not substantial and did not
consult a vocational expert, her position was not substantially
justified.
The Commissioner now argues that the ALJ’s error was simply
a “deficiency of articulation.”
Def.’s Resp. 2.
In support of
this argument, he points to the Court’s statement that “the ALJ
laid out no discussion of the effect of McGrath’s non-exertional
limitations in step five.” McGrath, 2012 U.S. Dist. LEXIS 50546,
at *22. The Commissioner’s assertion that a reversal for lack of
articulation does not require a finding that the Government’s
position was not substantially justified is correct.
v. Barnhart, 440 F.3d 862, 865 (7th Cir. 2006).
Cunningham
The reversal
here, however, was not merely for a lack of articulation.
Rather, as explained above, the ALJ skipped altogether a required
portion of the analysis in step five.
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The Commissioner also points to the portion of the Court’s
opinion that notes that “it is quite likely that the vision
problems were not substantial in relation to this analysis.”
McGrath, 2012 U.S. Dist. LEXIS 50546, at *22.
However, the
possible outcome of the appropriate analysis is irrelevant to
whether the ALJ’s position was substantially justified.
The
relevant question is whether the ALJ engaged in the appropriate
analysis and here, she did not.
was
required
to
demonstrate
The law is clear that the ALJ
that
McGrath’s
non-exertional
limitations were not substantial before she relied solely on the
grids in step five.
Luna, 22 F.3d at 691.
More than simply
failing to adequately articulate her reasoning, the ALJ failed to
take a required step in reaching her decision.
Accordingly,
neither the ALJ’s position in finding McGrath not disabled under
step five nor the Commissioner’s defense of that position were
substantially justified.
B.
Whether the Attorneys’ Fees Are Reasonable
Having determined that McGrath is entitled to attorneys’
fees, the Court turns now to the question of what amount is
reasonable. McGrath’s attorney requests an award of $5,850 based
on 31.5 hours of work (including time spent litigating this
motion) at a rate of $180.00 per hour.
The EAJA allows for an
award of “reasonable” attorneys’ fees and expenses.
28 U.S.C.
§ 2412(d)(2)(A). The statute provides that the reasonableness of
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the fees should be based on the prevailing market rate, but that
the 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 involved, justifies a higher fee.”
28 U.S.C. § 2412(d)(2)(A)(ii).
There is some disagreement over what requirements a claimant
must satisfy to receive an award based on a rate higher than $125
per hour.
Some courts believe the Seventh Circuit has indicated
that even where an attorney is able to show, by way of a cost of
living adjustment, that inflation has increased the cost of
providing adequate legal services, she must also show that,
absent a fee award above $125 per hour, no competent attorney in
the relevant geographical area would handle the case.
Sheets v. Astrue, 653 F.3d 560, 565 (7th Cir. 2011).
Mathews-
A number of
courts have since followed this interpretation of the EAJA.
See
Claiborne ex rel. L.D. v. Astrue, --- F.Supp.2d ---, 2012 WL
2680777, *3 (N.D. Ill. June 6, 2012) (listing cases that have
cited Mathews-Sheets as requiring both showings).
Other courts,
however, have rejected that reading of Mathews-Sheets and held
that
the
EAJA’s
language
provides
two
separate
bases
for
justifying fees higher than the $125 per hour rate – one for an
increase in the cost of living, and one for other “special
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circumstances.”
“declined
to
See id. (listing cases in which courts have
construe
requirement”).
Mathews-Sheets
as
imposing
this
dual
Here, the Commissioner does not directly address
the presence (or lack) of a dual requirement, but argues that,
under Mathews-Sheets, McGrath failed to provide an adequate basis
for a higher fee, and that “any fee award therefore should not be
made at an hourly rate higher than $125.”
Def.’s Resp. 5.
The
Court disagrees.
Regardless of whether the EAJA actually requires an attorney
to make both showings, the Court finds that McGrath’s attorney
has addressed both adequately and that the fees requested are
reasonable.
McGrath’s attorney makes an effort to justify an
inflation rate based on her particular circumstances.
She
explains that she determined the proposed hourly rate of $180.00
by applying cost of living adjustments from 2011 in conjunction
with
the
Consumer
geographical area.
Price
Index
for
the
Chicago-Gary-Kenosha
She also cites a number of recent cases from
this District in which courts awarded EAJA fees at similar rates.
Walker v. Astrue, 2012 WL 527527, *3-4 (N.D. Ill. Feb. 16, 2012)
(awarding fees at $170.58 per hour); Claiborne, 2012 WL 2680777
at *4 ($181.50 per hour); McCristal v. Astrue, 2012 WL 698365 *7
(N.D. Ill. March 1, 2012) ($175.00 per hour).
Furthermore, in
the reply brief, McGrath’s attorney affirmatively states that she
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does not know of any other attorneys in the relevant geographical
area that would be willing to take a case such as this for $125
per hour.
The attorney and her law partner also attached
affidavits repeating and supporting that assertion. All of these
things together are sufficient to indicate that an award at the
proposed
hourly rate
is, in
fact,
reasonable.
The
Court,
therefore, grants attorneys’ fees for 32.5 hours of work at a
rate of $180.00 per hour, totaling $5,850.00.
IV.
CONCLUSION
For the reasons stated herein, neither the ALJ’s position,
nor
the
Commissioner’s
substantially
justified.
defense
of
Accordingly,
that
position,
McGrath’s
attorneys’ fees under the EAJA is granted.
motion
were
for
Additionally, the
Court finds the fee proposal to be reasonable and awards McGrath
the sum of $5,850.00.
IT IS SO ORDERED.
Harry D. Leinenweber, Judge
United States District Court
DATE:9/27/2012
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