United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. MCCARTHY UNITED STATES MAGISTRATE JUDGE.
Application for Award of Attorney Fees Under the Equal Access
to Justice Act, [Dkt. 24], and her Supplemental Application,
[Dkt. 27], are before the court. The matters have been fully
briefed and are ripe for decision. Plaintiff seeks an award
of attorney fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. The Commissioner requests that
the fee request be denied on the basis that the
government's position was substantially justified.
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,
requires the United States to pay attorney fees and costs to
a "prevailing party" unless the court finds the
position of the United States was substantially justified, or
special circumstances make an award unjust. 28 U.S.C. §
2412(d). The United States bears the burden of proving that
its position was substantially justified. Kemp v.
Bowen, 822 F.2d 966, 967 (10th Cir. 1987).
Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct.
2541, 101 L.Ed.2d 490 (1988), the Supreme Court defined
"substantially justified" as "justified in
substance or in the main--that is, justified to a degree that
could satisfy a reasonable person." "Substantially
justified" is more than "merely undeserving of
sanctions for frivolousness." Id. In
determining whether the government's position is
substantially justified, it would seem appropriate to equate
the concept of substantial justification (i.e.
“justified to a degree that could satisfy a reasonable
person) with the substantial evidence (i.e.
evidence a reasonable mind might accept as adequate to
support a conclusion) required to support the agency's
decision. However, the Tenth Circuit has rejected that
approach holding that a position may be substantially
justified even though it was not supported by substantial
evidence. If this were not the case, there would be "an
automatic award of attorney's fees in all social security
cases in which the government was unsuccessful on the
merits." Hadden v. Bowen, 851 F.2d 1266, 1269
(10th Cir. 1988). The Tenth Circuit has reasoned that an
automatic award of fees under the EAJA would be contrary to
the intent of Congress, and adopted the majority rule
"that a lack of substantial evidence on the merits does
not necessarily mean that the government's position was
not substantially justified." Id. at 1267. The
Court approvingly quoted the following language from a Second
[A] reversal based on the ‘hazy contours of the
“substantial evidence” rule' does not
necessarily mean that the position of the Government was not
Id., at 1269, (quoting Cohen v. Bowen, 837
F.2d 582, 858 (2nd Cir. 1988).
court reversed the present case, not for legal error, but
because “the record would seem to support some
limitation on interacting with the public and Plaintiff's
past work seems to require contact withe the public[.]”
[Dkt. 19, p. 8]. In other words, the case was reversed
because it was not clear that the ALJ's decision was
supported by substantial evidence. Since it is error to
simply equate a finding of a lack of substantial evidence on
the merits with a lack of substantial justification and
thereby automatically award fees under the EAJA, the
undersigned has reviewed the ALJ's decision and has
considered the arguments presented to determine whether the
government's position had sufficient evidentiary support
to be substantially justified. In conducting that review, the
court was guided by language in Pierce v. Underwood,
that “a position can be justified even though it is not
correct . . . and can be substantially (i.e., for the most
part) justified if a reasonable person could think it
correct, that is, if it has a reasonable basis in law and
fact.” 108 S.Ct. at 2550, n.2. The court finds that the
Commissioner has demonstrated that there exists a genuine
dispute as to whether Plaintiff was more limited in her
ability to deal with coworkers, supervisors, and the public
than expressed in the RFC and consequently, whether she could
return to her past work.
on the foregoing, Plaintiffs Application for Award of
Attorney Fees Under the Equal Access to Justice Act, [Dkt.
24], and her Supplemental Application, [Dkt. 27], are DENIED.
 Pierce, 487 U.S. at
Fowler v. Bowen, 876 F.2d
1451, 1453 (10th Cir.1989) ...