The opinion of the court was delivered by: H. Bruce Guyton United States Magistrate Judge
This case is before the undersigned pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure, for disposition of plaintiff Timothy Hickle's ("Plaintiff") Motion for an Award of Attorney Fees in the Amount of $5,463.40 under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (d)(1) [Doc. 22]*fn1 and Memorandum in Support [Doc. 24]. The Commissioner contends plaintiff is not entitled to an award of attorney's fees because the government's defense of this case was substantially justified. However, the Commissioner further contends, if this Court finds plaintiff is entitled to attorney's fees, then the amount requested by plaintiff is unreasonable, and the Court should reduce the amount requested to a reasonable amount.
[Doc. 25]. Plaintiff also filed a reply. [Doc. 26]. Defendant then filed, pursuant to this Court's permission, a sur-reply [Doc. 30], to which plaintiff filed a response [Doc. 28].*fn2
Plaintiff originally filed a claim for Supplemental Security Income payments on June 4, 2002 and filed an application for Disability Insurance Benefits on July 2, 2002, claiming disability due to AIDS, depression, hepatitis A and C infection, toxoplasmosis, and neuropathy. After his claims were denied initially and upon reconsideration, he filed a request for a hearing, which was held before an administrative law judge ("ALJ") on March 10, 2004. In a decision issued on May 24, 2004, the ALJ found that the claimant was not disabled, and thus not entitled to disability benefits nor supplemental security income payments. On July 16, 2004, plaintiff requested review of the ALJ's decision from the Appeals Council, which was granted. On October 8, 2004, the Appeals Council vacated the decision of the ALJ and remanded the case, stating further evaluation was necessary to determine the extent to which plaintiff's impairments limit his ability to function. On February 2, 2005, the ALJ held a supplemental hearing and after hearing additional evidence, found plaintiff was not disabled and not entitled to benefits. After the Appeals Council denied plaintiff's request for review of the ALJ's subsequent decision to deny disability benefits, plaintiff filed a complaint in the United States District Court for the Eastern District of Tennessee, seeking review of the Commissioner's decision denying him disability benefits.
On September 11, 2007, United States District Judge Thomas Phillips entered an order adopting in whole this Court's Report and Recommendation and granted plaintiff's motion for judgment on the pleadings and denied defendant Commissioner's motion for summary judgment and remanded the case for an award of benefits [Doc. 20]. This Court found remand necessary for two reasons. First, the "ALJ failed to consider the total impact of Plaintiff's AIDS infection and its manifestations and medication-induced side-effects" [Doc. 17]. Second, this Court found the ALJ's decision failed to "provide good reasons to reject the treating physicians' assessments of Plaintiff's abilities," thus, "the ALJ's determination that Plaintiff does not meet Listing 14.08N is not supported by substantial evidence and he failed to apply the proper legal standards" [Doc. 17]. On October 11, 2007, plaintiff timely filed his motion requesting attorney's fees under the EAJA.
II. Petition for Award of Fees
Generally, each party to a lawsuit is responsible for payment of its own legal fees. See Scarborough v. Principi, 541 U.S. 401, 404 (2004). The Equal Access to Justice Act, however, departs from that general proposition and, in relevant part, states:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party, other than the United States, fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds 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). Thus, in order to be entitled to EAJA attorney's fees, four conditions must be met: (1) the plaintiff must be a prevailing party; (2) no special circumstances warranting denial of fees may exist; (3) the government's position must be without substantial justification; and (4) the application for attorney's fees must be filed within 30 days of the final judgment in the action. 28 U.S.C. § 2412(d)(1)(A)-(B).
The parties agree the issue in this case is whether the Commissioner's position in both the administrative proceedings and the civil action was "substantially justified," as the term is used in the EAJA. "The burden of establishing 'that the position of the United States was substantially justified,' ... must be shouldered by the Government." Scarborough, 541 U.S. at 414. To satisfy that burden, the United States must show that its position was "justified to a degree that could satisfy a reasonable person," not merely that the government was "undeserving of sanctions for frivolousness." Peck v. Commissioner of Social Security, 165 Fed.Appx. 443, 446 (6th Cir. Feb. 1, 2006) (citing Pierce v. Underwood, 487 U.S. 552, 565-66 (1988)). The Sixth Circuit has further noted that "a position is substantially justified when it has a reasonable basis in both law and fact. The fact that ... the Commissioner's position was unsupported by substantial evidence does not foreclose the possibility that the position was substantially justified." Howard v. Barnhart, 376 F.3d 551, 554 (6th Cir. 2004). Therefore, the Commissioner can lose on the merits of the disability claim, but win on the application for attorney's fees. See Couch v. Sec'y of Health & Human Servs., 749 F.2d 359, 360 (6th Cir. 1984). Furthermore, the United States Supreme Court has recognized that "[t]he fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified." Pierce, 487 U.S. at 569. "Nevertheless, a string of losses can be indicative; and even more so a string of successes." Id.
In the present case, the Commissioner opposes plaintiff's petition for EAJA fees, contending his position was substantially justified, and thus, plaintiff is not entitled to attorney's fees under the EAJA [Doc. 25]. The Commissioner argues that while the ALJ's decision may not have been supported by substantial evidence because it was not adequately explained in accordance with the treating physician rule, the ALJ's decision was at least substantially justified [Id.]. Plaintiff argues that the ALJ's erroneous application of Listing 14.08N, his rejection of his treating physician's opinions, and the failure to properly evaluate his need for excessive work breaks and absenteeism was not substantially justified [Doc. 24].
The record indicates that the government's position was not reasonable in law because the ALJ committed legal error. Regulations issued by the Secretary provide that a "treating source's opinion" will warrant "controlling weight" when it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial ...