LIVINGSTON v. ASTRUE

Filing 39

ORDER granting 31 Motion for Attorney Fees. Signed by Judge Tanya Walton Pratt on 12/3/2013. (JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
CHRISTOPHER R. LIVINGSTON,
Plaintiff,
v.
CAROLYN W. COLVIN Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 1:11-cv-01615-TWP-TAB

ENTRY ON APPLICATION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT
This matter is before the Court on the Petition by Plaintiff Christopher R. Livingston
(“Mr. Livingston”) for an award of attorney’s fees and expenses under the Equal Access to
Justice Act, 28 U.S.C. § 2412(d) (“EAJA”) (Dkt. 31). Mr. Livingston applied for Supplemental
Security Income (“SSI”) based on severe mental impairments associated with autism. His
application was denied initially, on reconsideration, and by an Administrative Law Judge
(“ALJ”). The Appeals Council denied review, and Mr. Livingston prevailed on judicial review
when this Court remanded his case for further administrative proceedings under sentence four of
42 U.S.C. § 405(g) (Dkt. 30). For the reasons discussed below, Mr. Livingston’s Petition for
Attorney Fees Under the Equal Access to Justice Act (Dkt. 31) is GRANTED.
I.

DISCUSSION

The EAJA provides that a successful litigant against the federal government is entitled to
recover attorney’s fees if: (1) he was a “prevailing party”; (2) the government’s position was not
“substantially justified”; (3) there existed no special circumstances that would make an award
unjust; and (4) he filed a timely application with the district court. 28 U.S.C. §

2412(d)(1)(A),(B); Cunningham v. Barnhart, 440 F.3d 862, 863 (7th Cir. 2006). Mr. Livingston
was the prevailing party and his fee application was filed timely.

His counsel seeks

compensation for 36.5 hours of attorney time at the rate of $184.22 per hour for a total of
$6,724.03. The Commissioner objects to the award of attorney fees on the basis that the
Commissioner’s position was substantially justified.1
A.

The Commissioner’s position was not substantially justified.
The Commissioner has the burden of establishing that her position was substantially

justified. Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). The Supreme Court has
defined “substantially justified” to mean “justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In Pierce, the Court emphasized that
“a position can be justified even though it is not correct . . . if it has a reasonable basis in law and
fact.” Id. at 566 n.2; see also Mogg v. Astrue, 266 Fed. Appx. 470 (7th Cir. 2008). To evaluate
whether the government’s position was substantially justified, the court looks at the agency’s
pre-litigation position and then makes one determination as to the entire civil action. Bassett v.
Astrue, 641 F.3d 857, 860 (7th Cir. 2011).
In finding that this case should be remanded, the Court noted that the ALJ’s hypothetical
posed to the Vocational Expert (“VE”) omitted Mr. Livingston’s moderate deficiencies in
concentration, persistence and pace, despite the ALJ’s finding of such limitation, and that the
phrase “simple, repetitive tasks” does not adequately capture limitations in concentration,
persistence and pace. Dkt. 28 at 11-12. The Commissioner argues that her position was not
unreasonable, and was supported by persuasive authority in six district court decisions.
However, the Commissioner ignores binding precedent that states that limiting a worker to
simple, repetitive work does not necessarily address deficiencies in concentration, or persistence
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The Commissioner does not object to the requested hourly rate increase, nor to the amount of time expended.

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and pace, and that “the ALJ should refer expressly to limitations on concentration, persistence
and pace in the hypothetical in order to focus the VE’s attention on these limitations.”
O’Connor-Spinner v. Astrue, 627 F.3d 614, 620-21 (7th Cir. 2010). The Commissioner did not
argue that either of the two exceptions to this general rule applied, and instead relied upon the six
district court cases to support her argument. The formulation of the hypothetical given to the VE
contradicted judicial precedent because it failed to include all limitations supported by evidence
in the record, and the Seventh Circuit has determined that the Commissioner’s defense of such a
hypothetical lacks substantial justification. Stewart v. Astrue, 561 F.3d 679, 684-84 (7th Cir.
2009).

Therefore, the Court finds that the Commissioner’s position was not substantially

justified, and Mr. Livingston is entitled to an award of attorney’s fees under the EAJA.
B.

Mr. Livingston is entitled to additional fees for litigating his EAJA petition
Mr. Livingston requests an additional $681.61 based upon 3.7 hours spent researching

and writing the Reply to the Commissioner’s objection to his EAJA petition. In finding that a
prevailing litigant may recover the costs of litigating an EAJA fee petition, the Supreme Court
has stated that:
[t]he EAJA . . . provides district courts discretion to adjust the amount of fees for
various portions of the litigation . . . . The purpose and legislative history of the
statute reinforce our conclusion that Congress intended the EAJA to cover the
cost of all phases of successful civil litigation addressed by the statute.
Comm’r, I.N.S. v. Jean, 496 U.S. 154, 165-66 (1990). The Court finds that the amount of
additional time expended on drafting the Reply brief is reasonable, and therefore Mr. Livingston
is entitled to an award for this additional amount.
II.

CONCLUSION

Mr. Livingston’s Petition for Attorney Fees Under the Equal Access to Justice Act (Dkt.
31) is hereby GRANTED. For the reasons set forth above, the Court finds the amount of
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$6,724.03 in attorney’s fees plus $681.61 for litigating the EAJA petition, for a total of
$7,405.64, to be reasonable. The Court awards to Mr. Livingston attorney’s fees and costs under
28 U.S.C. § 2412(d) in the amount of $7,405.64, and the Commissioner shall direct that the
award be made payable to Mr. Livingston’s counsel consistent with the assignment in the record
(Dkt. 32-2).

SO ORDERED.
12/03/2013
Date: _________________

________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Timothy J. Vrana
[e-mail]
James B. Geren
OFFICE OF GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY’S OFFICE
[e-mail]

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