United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Orlando Walker's Motion for
Attorney's Fees under the Equal Access to Justice Act
(“EAJA”). Doc. 26. Defendant Nancy Berryhill has
filed a response. Doc. 28. For the reasons that follow,
Plaintiff's Motion is GRANTED.
Motion is for fees incurred in bringing a civil action
appealing an administrative determination of the Social
Security Administration that Plaintiff was not disabled for
purposes of the Social Security Act. United States Magistrate
Judge Bernard M. Jones recommended that the
Commissioner's decision be reversed and remanded. Doc.
23. This Court then adopted the Report and Recommendation.
that the position of the Defendant has not been substantially
justified, Plaintiff now requests an award of $5, 398.80 for
attorney's fees incurred in this civil action at a
request rate of $192.00 per hour for attorney services and
$110.00 per hour for paralegal services, all pursuant to the
EAJA, 28 U.S.C. § 2412. Defendant objects to
Plaintiff's EAJA fee request-not on the basis that the
Defendant was substantially justified in its position-but on
the grounds that special circumstances exist that support
denying or reducing an award under the EAJA.
award may be denied or reduced if “special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A). Though this statute does not define
“special circumstances” or “unjust, ”
the Eighth Circuit has explained that equitable
considerations should inform a court's decision in this
area. See U.S. Dept. of Labor v. Rapid Robert's
Inc., 130 F.3d 345, 347 (8th Cir. 1997) (citing
Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir. 1983)
(“the EAJA thus explicitly directs a court to apply
traditional equitable principles”)). In a similar vein,
one court has found that an award should be reduced to
reflect the plaintiff's reduced contribution to his or
her ultimate victory. See Firstland Intern, Inc. v.
INS, 264 F. App'x 22, 25 (2d Cir. 2008)
(“Plaintiffs' only contribution to their ultimate
victory in the underlying case was the supplemental brief
they submitted at this Court's request. We conclude that
an award of fees for any amount greater than the cost of
preparing that supplemental brief would be unjust.”).
argues that special circumstances warrant a denial of
attorney's fees here because Plaintiff failed to identify
the specific grounds that eventually led the Court to remand.
Plaintiff had two grounds for appealing the
Commissioner's decision denying him disability insurance
benefits. His first ground was the one that ultimately led
the Court to reverse and remand the Commissioner: that the
Vocational Expert's testimony did not match that of the
Residual Functional Capacity (“RFC”). As
Plaintiff pointed out, the ALJ determined that because of
Plaintiff's bad left shoulder he should only do
“occasional” reaching with his left arm and
shoulder. The ALJ then asked the VE about which jobs
Plaintiff would be able to do given this limitation; the VE
answered that Plaintiff could still do the jobs of bench
assembler, electronic equipment assembler, and press machine
operator. The problem with this answer, Plaintiff argued, was
that the Dictionary of Occupational Titles classifies these
jobs as requiring frequent, not occasional,
the Magistrate agreed with the Plaintiff's broader notion
that the VE's testimony did not match that of
Plaintiff's RFC, he recommended reversal and remand on a
slightly different basis than that of the distinction between
occasional and frequent reaching as offered by Plaintiff.
According to the Magistrate, the problem with the VE's
testimony and the ALJ's RFC determination was the
distinction between reaching and lifting. The
Magistrate correctly noted that “an ALJ must inquire
about and resolve any conflicts between a [VE's]
testimony regarding a job and the description of that job in
the [DOT].” Poppa v. Astrue, 569 F.3d 1167,
1173-1174 (10th Cir. 2009). At the hearing, however, the ALJ
presented a hypothetical to the VE that included a limitation
to lifting rather than Plaintiff's actual
disability-being able to reach only occasionally with his
VE: Sir, if you could clarify; the hypothetical stated
occasionally lifting with the left shoulder?
ALJ: Uh-huh. In other words, up to a third of the time. He
can lift with his right arm and assist with his left
but . . . he's had some medical conditions in the past
that probably preclude bilateral lifting.
VE: Okay. Thank you, sir. The DOT does not address
bilateral lifting . . . Based upon my experience, I
would conclude that he could perform jobs such as bench
assembler . . . assembler, electrical equipment . . . and a
press machine operator.
ALJ: Okay. Does the evidence that you have provided conflict
with information in the DOT?
VE: Other than the notion of bilateral lifting and
the use of the upper ...