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Leake v. Commissioner of Social Security

United States District Court, W.D. Oklahoma

March 8, 2017




         Before the Court is Plaintiff's Motion for Attorney's Fees Under the Equal Access to Justice Act (EAJA). (ECF No. 26). Specifically, Plaintiff seeks an award of fees in the amount of $4, 769.30. (ECF No. 26 & 27). Defendant objects to any award of fees, arguing that her position was “substantially justified.” The Court rejects Defendant's argument and GRANTS an award of fees to Plaintiff in the amount of $4, 728.50.


         EAJA entitles a prevailing party to recover reasonable attorney fees from the government “‘unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.'” Al-Maleki v. Holder, 558 F.3d 1200, 1204 (10th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)). The test for “substantial justification” is one of “reasonableness in law and fact.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). In other words, “the government's position must be “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, (1988).

         “The term ‘position' includes the government's position both in the underlying agency action and during any subsequent litigation.” Hadden v. Bowen, 851 F.2d 1266, 1268 (10th Cir. 1988); see 28 U.S.C. § 2412(d)(2)(D) (explaining that the “position of the United States” is “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.”). The burden rests with the government to prove that its position was substantially justified. Kemp v. Bowen, 822 F.2d 966, 967 (10th Cir. 1987).


         Previously, the Court ordered: (1) reversal of the Commissioner's decision denying Plaintiff's application for supplemental security income and (2) a remand for further administrative proceedings (ECF Nos. 24 & 25). The reversal was based on the ALJ's improper evaluation of the opinion from a consultative physician, Dr. S.A. Chaudry. (ECF No. 28:4-9). With the reversal and remand, Ms. Leake is considered the “prevailing party” for purposes of EAJA. See Shalala v. Schaefer, 509 U.S. 292 (1993). Thus, the only issues are whether the government's position was “substantially justified” and whether any special circumstances exist which would prevent an award of benefits.


         Dr. Chaudry had performed a consultative examination of Plaintiff and opined, in part, that she could: (1) sit for 20 minutes at one time, (2) stand for 20 minutes at one time, and (3) walk for 10 minutes at a time assisted with a cane and 5 minutes at a time unassisted. (TR. 496, 500). The ALJ recited Dr. Chaudry's findings, and stated: “The undersigned gives great weight to Dr. Chaudry's opinion at Exhibit 17F, as is supported by the objective evidence.” (TR. 26, 33). But as noted by the Court, the ALJ engaged in an impermissible review of Dr. Chaudry's opinion because not all of the physician's findings were reflected in the RFC and the ALJ failed to explain the discrepancy.

         The RFC allowed for Ms. Leake to perform “sedentary work as defined in 20 CFR 416.967(a) except occasional ramps and stairs and occasional hazards.” (TR. 30). Sedentary work, in turn, requires the ability to sit for at least 6 hours during an 8-hour workday and “occasional” walking and standing. 20 C.F.R. §416.967(a); SSR 96-9p, 1996 WL 374185, at *6 (1996). “Occasional” has been defined as “occurring from very little up to one-third of the time, and would generally total no more than about 2 hours of an 8hour workday.” SSR 96-9p, 1996 WL 374185, at *3 (1996). Dr. Chaudry opined that Ms. Leake could walk and stand for approximately two hours in an 8-hour workday, and sit for approximately six hours during an 8-hour workday. (TR. 496, 500). These opinions were consistent with the RFC determination for “sedentary” work, but the ALJ ignored Dr. Chaudry's additional limitations which stated that Ms. Leake could only walk for 10 minutes at one time, stand for only 20 minutes at one time, and sit for only 20 minutes at one time. (TR. 496, 500). These additional restrictions implied that Ms. Leake would need to alternate positions after the allotted time had expired, which could have impacted her ability to perform sedentary work. The Tenth Circuit Court of Appeals has repeatedly held that this type of selective review is improper:

[T]he ALJ fully discounted the bulk of [a physician's] mental RFC limitations with no explanation at all as to why one part of his opinion was creditable and the rest was not. That is error under this circuit's case law.
We have repeatedly held that [a]n ALJ is not entitled to pick and choose through an uncontradicted medical opinion, taking only the parts that are favorable to a finding of nondisability.

Chapo v. Astrue, 682 F.3d 1285, 1292 (10th Cir. 2012) (citing Haga v. Astrue, 482 F.3d 1205, 1208 (10th Cir. 2007); Robinson v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004), and Hamlin v. Barnhart, 365 F.3d 1208, 1219 (10th Cir. 2004)) (internal quotation marks omitted).

         In defense of the Commissioner's position as “substantially justified, ” Defendant argues that Dr. Chaudry “and others” noted that Ms. Leake had a “normal gait.” (ECF No. 28:4). According to Defendant, “[t]his evidence supported the ALJ's consideration of Dr. Chaudry's opinion as to Plaintiff's exertional limitations.” (ECF No. 28:5). The Court disagrees for two reasons. First, a finding of “normal gait” would refer only to Ms. Leake's ability to walk, but the finding is silent regarding the length of time Plaintiff could walk before having to rest. Second, a finding of “normal gait” is not ...

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