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Case: 3:11-cv-00070-wmc Document #: 25 Filed: 07/30/13 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WISCONSIN

LINDAA. HOEFT,

v.

Plaintiff,

OPINION AND ORDER

11-cv-70-wmc

CAROLYN COLVIN, SOCIAL
SECUITY ADMINISTRATOR,

Defendant.

On January 22, 2013, this court reversed a decision of the Social Security

Commissioner and remanded the application for benefits filed by plaintiff Linda Hoeft

for further consideration of one issue. Hoeft now moves for attorney fees under the Equal

Access for Justice Act, 28 U.S.C. § 2412, arguing that she is entitled to a fee award

because the government's position was not substantially justified, as well as an increased

fee beyond the statutory rate of compensation to account for increases in the cost of

living. The government objects, arguing that Hoeft meets neither the criteria for fees nor

an increase beyond the statutory rate. The court agrees.

A.

Substantial Justification

A litigant is entitled to attorney fees under the EAJA unless the government fails

to show that its position was "substantially justified or that special circumstances make

an award unjust." 28 U.S.C. § 2412. In this context, substantial justification is not the

same as nonfrivolous, but there is no presumption that fees are to be awarded merely

because the government lost its case. McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir.

Case: 3:11-cv-00070-wmc Document #: 25 Filed: 07/30/13 Page 2 of 5

1983); Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987). The government must

show that it proceeded upon a reasonable though not necessarily correct basis in fact and

law. Schweiker, 726 F.2d at 316. Put another way, the government's position is

substantially justified when a reasonable person could believe that it is correct. Pierce v.

Underwood, 487 U.S. 552, 566 n.2 ( 1988).

To meet this standard, 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 advanced. United States v. Hallmark Constr. Co., 200 F.3d 1076, 1080 (7th

Cir. 2000). The government's "position" includes the reasoning and arguments of the

ALJ and the commissioner's subsequent litigation position, 28 U.S.C. § 2412(d)(2)(D);

Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994); see also Jackson v. Chater, 94 F.3d

274, 278 (7th Cir. 1996) (EAJA requires single substantial justification determination

that "simultaneously encompasses and accommodates the entire civil action"). The

burden of proof falls upon the commissioner to show substantial justification. Cummings

v. Sullivan, 950 F.2d 492, 495 (7th Cir. 1991).

Because the ALJ was presented with insufficient evidence on whether Hoeft could

perform any of her past relevant work, plaintiff avers that the ALJ was not substantially

justified in finding that she could perform one of her two past "customer service" jobs

without specifying which one. A review of the order remanding this case reveals that the

court's concern with the ALJ's determination did not include the amount of evidence he

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Case: 3:11-cv-00070-wmc Document #: 25 Filed: 07/30/13 Page 3 of 5

relied upon in support, but rather his inability to articulate to which of Hoeft's

previously-held, relevant work he referred. For this reason, the court found that:

[b ]ecause the ALJ failed to articulate adequately a logical
bridge between Hoeft's past relevant work and her residual
functional capacity to perform that work at a sedentary level,
this case must be remanded to the Commissioner for
additional findings at step four to be followed, if necessary,
by a step-five finding to determine whether there is other
work that Hoeft can perform in the national economy.

Opinion and Order, pp. 27-28.

As the Seventh Circuit has noted, an ALJ's failure to articulate the basis for his

decision "in no way necessitates a finding that the Secretary's position was not

substantially justified." Stein v. Sullivan, 966 F.2d 317, 319-320 (7th Cir. 1992); see also

Kusilek v. Barnhart, No. 04-310,2005 U.S. Dist. LEXIS 4342, at *14 (W.D. Wis. March

2, 2005). The government's conduct must be treated as a whole and not as "atomized

line-items." Cummings, 950 F.2d at 500. A reasonable person could believe that the

government's position throughout the course of this case was correct. Errors of

articulation are not always cause for remand, and although the government did not

prevail in this suit, its position was still based on reasonable views of the law and the

facts of Hoeft's case. Therefore, the court will decline to award attorney fees to Hoeft.

B.

Upward Departure from Statutory Rate

Not only does Plaintiff claim that she is entitled to attorney fees under 28 U.S.C.

§ 2412, but also that her case meets the criteria necessary for an upward departure of the

statutory rate of compensation. The EAJA provides for "reasonable attorney fees" to be

awarded; however, it also provides a statutory cap for those fees at $125 per hour,

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Case: 3:11-cv-00070-wmc Document #: 25 Filed: 07/30/13 Page 4 of 5

"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). Hoeft does not argue that some "special factor"

necessitates a higher fee, but rather that a cost of living adjustment should be made to

reflect the 41% increase in the Consumer Price Index for the Midwest urban region since

1996, when the current EAJA provision was put into effect.

Referencing the CPI to adjust EAJA fees is common in district courts of the

Seventh Circuit and decisions of other courts can appropriately be used as persuasive

authority here, despite the commissioner's arguments to the contrary. See Samuel v.

Barnhart, 316 F. Supp. 2d 768, 780-81 (E.D. Wis. 2004); Wonders v. Shalala, 822 F.

Supp. 1345, 1346 (E.D. Wis. 1993); Simms v. Astrue, No. 08-00094, 2009 U.S. Dist.

LEXIS 50185, at *22 (N.D. Ind. June 12, 2009); Holland v. Barnhart, No. 02-8398, 2004

U.S. Dist. LEXIS 1364, at* 1 (N.D. Ill. Feb. 3, 2004). Furthermore, the Western District

has also used CPI adjustments in its own opinions. See, e.g., Prochaska v. Barnhart, No. 04-

644, 2007 U.S. Dist. LEXIS 7078, at *29 (W.D. Wis. Jan. 29, 2007).

If the court had decided that attorney fees were appropriate in this case, an

adjustment of the statutory hourly rate may have been appropriate to account for an

increase in the CPI for the relevant geographical region since 1996. I Many of the cases

cited by plaintiff involve social security commissioners who did not contest the proposed

hourly rate of plaintiffs, since it is the court's prerogative to decide whether an upward

I The commissioner's argument that the rising cost of doing business in New York is
irrelevant, although it is credited.

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Case: 3:11-cv-00070-wmc Document #: 25 Filed: 07/30/13 Page 5 of 5

departure from the statutory amount is warranted. But this discussion is irrelevant where

the court has denied an award of fees altogether.

ORDER

IT IS ORDERED that plaintiff's motion for an award of attorney fees and

expenses under the Equal Access to Justice Act (dkt. #20) is DENIED.

Entered this 30th day ofJuly, 2013.

BY THE COURT:

Is/

WILLIAM M. CONLEY
District Judge

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