Opinion
Cause No. 1:04-CV-018.
December 8, 2004
MEMORANDUM OF DECISION AND ORDER
Plaintiff Sharon Cooper ("Cooper") brought this suit to contest a denial of disability benefits by Defendant Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner"). On September 28, 2004, this Court entered an order affirming in part and reversing and remanding in part the Commissioner's denial of benefits. (Docket # 16.) Cooper now moves to recover attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412.
The Commissioner opposes Cooper's fee request solely on the grounds that her litigation position was "substantially justified." See 28 U.S.C. § 2412(d)(1)(A). The government's position is substantially justified "if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). It is the government's burden to show substantial justification. U.S. v. Hallmark Constr. Co., 200 F.3d 1076, 1079 (7th Cir. 2000).
In its Order of September 28, this Court reversed and remanded the Commissioner's decision because the ALJ, Brian Bernstein, failed to comply with Social Security Ruling 83-14. (Docket # 16 at 12-14.) SSR 83-14 requires the ALJ, if he determines that the claimant can perform work in the national economy, to provide examples of jobs the claimant can perform. Social Security Rulings are binding on ALJs, and Bernstein's failure to follow SSR 83-14 was an obvious legal error, requiring remand. Prince v. Sullivan, 933 F.2d 598, 602-03 (7th Cir. 1991). Accordingly, the Commissioner's attempt to defend the ALJ's error was not substantially justified.
Exacerbating the situation, this case is the third time in the last eighteen months that the undersigned Magistrate Judge has reversed this same ALJ for failing to comply with SSR 83-14. In both of the previous cases ( Mitchell v. Barnhart, 1:03-CV-012, and Lovellette v. Barnhart, 1:02-CV-278), this Court awarded fees to the claimant. In Mitchell, the Commissioner did not oppose the claimant's motion for fees. In Lovellette, the Court rejected the Commissioner's argument that she was substantially justified in defending Bernstein's failure to comply with SSR 83-14. The Commissioner's position was no more substantially justified in the instant case than it was a year ago in Lovellette. Thus, Cooper is entitled to an award of fees.
Cooper's attorney, Joseph Shull, avers that he is entitled to an award of $2,018.95. (Docket # 23, 24.) The Commissioner does not challenge this figure, and the Court finds it reasonable. Therefore, Cooper's motion and supplemental motion for attorney fees (Docket # 18, 23) are hereby GRANTED in the amount of $2,018.95.