United States District Court, N.D. Oklahoma
OPINION AND ORDER
J. Clearly United States District Judge.
the Court is the plaintiff's Application for Attorney
Fees Under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), and her
Supplemental Application for Award of Attorney's Fees
Under EAJA [Dkt. ##29, 32]. Defendant, the Acting
Commissioner of the Social Security Administration
(“Commissioner”), opposes the initial motion.
[Dkt. #30]. The Commissioner did not respond to the
requires the United States to pay attorney fees and costs to
a “prevailing party” unless the Court finds the
position of the Commissioner was substantially justified, or
special circumstances make an award unjust. 28 U.S.C. §
2412(d). In Pierce v. Underwood, 487 U.S. 552, 565
(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. A position
may be substantially justified even though it was not
supported by substantial evidence. If this were not the case,
then 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).
Reasoning that such an automatic award of fees under EAJA
would be contrary to the intent of Congress, the Tenth
Circuit has 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.
government has the burden of establishing its position was
substantially justified. Hackett v. Barnhart, 475
F.3d 1166, 1169 (10th Cir. 2007). In evaluating whether the
government's position was substantially justified, the
focus is on the issue that led to remand, rather than the
ultimate issue of disability. Flores v. Shalala, 49
F.3d 562, 566 (9th Cir. 1995). Therefore, the government must
justify both its position in the underlying administrative
proceedings and its position in any subsequent court
litigation. Hackett, 475 F.3d at 1170. Consequently,
fees should generally be awarded where the agency's
underlying action was unreasonable even if the government
advanced a reasonable litigation position. Id. at
1174 (quoting United States v. Marolf, 277 F.3d
1156, 1159 (9th Cir. 2002)).
Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir.
1991), the Commissioner asserts she was substantially
justified in defending the ALJ's decision based on the
“strong administrative record.” [Dk.t #30 at 3].
This argument lacks merit.
Court reversed and remanded the Commissioner's decision
because the ALJ failed to discuss opinion evidence from
consultative examiner Kay Smasal, Ph.D., and non-examining
state agency psychologists. [Dkt. #27 at 20]. In her response
to plaintiff's fee motion, the Commissioner-citing
Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir.
1991)-argues her position was substantially justified because
she relied on an arguably defensible administrative record.
However, as the court in Crawford also stated,
“Administrative agencies must follow the law of the
circuit whose courts have jurisdiction over the cause of
action.” Id. And it is undisputed in this
• An ALJ, in addition to discussing the evidence
supporting his decision, “also must discuss the
uncontroverted evidence he chooses not to rely upon, as well
as significantly probative evidence he rejects.”
Clifton v. Chater, 79 F.3d 1007, 1009 (10th Cir.
1996). See also Frantz v. Astrue, 509 F.3d 1299,
1302 (10th Cir. 2007) (It is error to ignore evidence
supporting a finding of disability while highlighting the
evidence that favors a finding of nondisability).
• The ALJ is required to discuss all opinion evidence
and to explain what weight he gives it. Robinson v.
Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004). See
also 20 C.F.R. § 404.1527(c) (“Regardless of
its source, we will evaluate every medical opinion we
• The ALJ is not allowed to pick and choose among
medical reports, using portions of evidence favorable to his
position while ignoring other evidence. Keyes-Zachary v.
Astrue , 695 F.3d 1156, 1166 (10th Cir. 2012).
the factual and legal errors the ALJ committed, the
administrative record is not arguably defensible. As a
result, the undersigned concludes the Commissioner has failed
to show that both her position in the underlying
administrative proceedings and in this court litigation was
substantially justified, and therefore, EAJA fees should be
has requested EAJA fees in the amount of $3, 633.20. The
Commissioner did not object to the amount of the fee request,
and the undersigned finds the request is reasonable.
the court finds plaintiffs request for supplemental fees of
$614.00 incurred in replying to the Commissioner's
response in opposition is reasonable.
the Court hereby awards EAJA fees in the amount of $4,
247.00. Pursuant to the Commissioner's usual practice,
the check should be made payable to plaintiff and mailed to
counsel's address. See Manning v. Astrue, 510
F.3d 1246, 1254-55 (10th Cir. 2007) (the award of EAJA
attorney's fees is to claimant and not to the attorney).
If attorney fees are also awarded and received by counsel
under 42 U.S.C. § 405(b) of the Social Security ...