United States District Court, W.D. Oklahoma
JOHN H. BRYANT JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
August 24, 2016, the Court entered a Judgment reversing the
decision of the Acting Commissioner of the Social Security
Administration (“SSA”) and remanding this case
for further administrative proceedings. See J. (Doc.
No. 22); see also Op. & Order (Doc. No. 21).
Plaintiff John H. Bryant Jr. now moves for an award of
attorney's fees in the amount of $5681.60 pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. See Pl.'s Mot. Att'y Fees (Doc.
No. 23); Pl.'s Br. (Doc. No. 24). Defendant has responded
(Def.'s Resp. (Doc. No. 25)), and Plaintiff has replied
(Pl.'s Reply (Doc. No. 26)).
Attorney Fee Awards Under the EAJA
2412(d) of the EAJA provides that a prevailing party other
than the United States shall be awarded reasonable fees in a
civil action “unless the court finds that 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), (d)(2)(A). The “position of the
United States” includes not only the position taken by
the government in the present civil action but also
“the action or failure to act by the agency upon which
the civil action is based.” Id. §
2412(d)(2)(D). “[T]he required ‘not substantially
justified' allegation imposes no proof burden on the fee
applicant”; “the Government is aware, from the
moment a fee application is filed, that to defeat the
application on the merits, it will have to prove its position
‘was substantially justified.'”
Scarborough v. Principi, 541 U.S. 401, 403 (2004);
accord Hackett v. Barnhart, 475 F.3d 1166, 1169
(10th Cir. 2007). To make this showing, the government must
prove that its case “had a reasonable basis in law and
in fact.” Hadden v. Bowen, 851 F.2d 1266, 1267
(10th Cir. 1988). The term “substantially
justified” has been defined as “‘justified
in substance or in the main-that is, justified to a degree
that could satisfy a reasonable person.'”
Id. (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)); see also 28 U.S.C. §
2412(d)(1)(B) (prescribing that whether the government's
position was substantially justified is determined on the
basis of the record before the court, including the record of
the agency's action or failure to act upon which the
civil action was based).
Whether Plaintiff Is the Prevailing Party
noted above, the Court previously reversed the Acting
Commissioner's decision denying Plaintiff's
applications for disability insurance benefits and
supplemental security income under the Social Security Act,
42 U.S.C. §§ 401-434, 1381-1383f. Having obtained
reversal and remand under sentence four of 42 U.S.C. §
405(g), Plaintiff is considered the “prevailing
party” for purposes of the EAJA. See Id. at
13; 28 U.S.C. § 2412(d)(2)(B); Shalala v.
Schaefer, 509 U.S. 292, 300-01 (1993).
Whether the Government Has Shown Its Position Was
administrative proceedings below, the ALJ committed two
separate errors. First, he rejected the medical opinion of
Plaintiff's treating physician Dr. Brent Hisey regarding
a sitting restriction based exclusively “on his own
speculation about how ‘an individual' who has had
successful spinal fusion ‘should' be able to
function a year later.” Op. & Order at 9-10. The
ALJ thereby failed to comply with the treating physician
rule, as he improperly “ma[de] speculative inferences
from medical reports, ” rejected a treating
physician's opinion based upon “his own . . .
speculation or lay opinion” rather than “on the
basis of contradictory medical evidence, ” and failed
to give “legitimate reasons” for rejecting that
opinion. Id. (citations and internal quotation marks
omitted). Second, the ALJ failed to properly evaluate Dr.
Hisey's medical opinion regarding Plaintiff's need to
lie down during the workday, by: (i) first indicating that he
was rejecting the limitation; then (ii) appearing to adopt it
but stating that the limitation can be accommodated through
normal work breaks-a “mere conclusion” for which
the ALJ offered no basis and that was unsupported by
substantial evidence. Id. at 12 (citations and
internal quotation marks omitted).
therefore was required based upon the ALJ's failure to
apply the correct legal standards and upon a lack of
substantial evidence to uphold the ALJ's residual
functional capacity determination. See Id. at 3-4,
8-13. The Court declined to address other propositions of
error raised by Plaintiff because they could be
“‘affected by the ALJ's treatment of this
case on remand.'” Id. at 4 (quoting
Watkins, 350 F.3d at 1299).
objects to any award of fees, arguing that the
government's position was substantially justified with
respect to both denying Plaintiff's applications for
benefits and defending that denial in this Court.
See Def.'s Resp. at 3-7; see also Gutierrez
v. Sullivan, 953 F.2d 579, 585 (10th Cir. 1992)
(“We consider the reasonableness of the position the
Secretary took both in the administrative proceedings and in
the civil action Plaintiff commenced to obtain
benefits.”). Although thorough, the ALJ's
assessment of Dr. Hisey's opinions reflected multiple
legal errors. See Op. & Order at 9-13. Defendant
has not shown “a reasonable basis in law and in
fact” for the ALJ's denial of benefits.
Hadden, 851 F.2d at 1267; see Gutierrez,
953 F.2d at 584-86 (finding that district court abused its
discretion in denying fees to plaintiff where the ALJ's
findings were unreasonable based on the record before the
additionally asserts that her litigation position was
substantially justified because Defendant raised reasonable
arguments on appeal as to why the ALJ's error regarding
Dr. Hisey's sitting restriction was harmless and why the
ALJ's findings regarding Plaintiff's abilities to sit
and lie down were supported by substantial evidence.
“EAJA fees generally should be awarded where the
government's underlying action was unreasonable even if
the government advanced a reasonable litigation
position.” Hackett, 475 F.3d at 1174 (internal
quotation marks omitted). The Tenth Circuit has recognized an
exception to this rule, however, “when the Commissioner
reasonably (even if unsuccessfully) argues in litigation that
the ALJ's errors were harmless.” Groberg v.
Astrue, 505 F.App'x 763, 765 (10th Cir. 2012).
did not argue that the ALJ's erroneous assessment of Dr.
Hisey's lying-down restriction was harmless. See
Def.'s Br. (Doc. No. 20) at 13. Rather, Defendant
contended that the ALJ's interpretation of Dr.
Hisey's restriction was reasonable, citing Social
Security Rulings, Dr. Hisey's failure to elaborate, and a
lack of other medical opinions on the subject-none of which
was relied upon in the ALJ's written decision to support
this conclusion. See id.; cf. Groberg, 505
F.App'x at 765 n.1 (“We do not consider an entirely
new rationale for affirmance on grounds different from those
previously considered by the ALJ to be a true harmless error
argument.”). Given that the Court may not salvage an
ALJ's decision by adopting “post-hoc
rationalizations” such as these, Defendant's
litigation position was not substantially justified. Haga
v. Astrue, 482 F.3d 1205, 1207 (10th Cir. 2007). The
lying-down-restriction error by the ALJ by itself warranted
reversal, and so Defendant has not shown that her litigation
position “cured unreasonable agency action.”
Groberg, 505 F.App'x at 768 (alteration and
internal quotation marks omitted); Op. & Order at 12-13;
see Branum v. Barnhart, 385 F.3d 1268, 1270 (10th
thus has not shown that this case is
“exceptional” or that the United States'
position before the SSA and this Court was substantially
justified. Groberg, 505 F.App'x at 765, 768;
see 28 U.S.C. § 2412(d)(1)(A), (B), (d)(2)(D).
Whether Plaintiff's Fee ...