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Vincent v. Beryhill

United States District Court, W.D. Oklahoma

March 27, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.[1]



         On September 26, 2016, the Court entered its Judgment reversing the Commissioner's final decision denying Plaintiff Sharon Ann Vincent's applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”), and remanding this case for further proceedings under the fourth sentence of 42 U.S.C. § 405(g). See J. (Doc. No. 23) at 1; Op. & Order (Doc. No. 22) at 1-20. Plaintiff now requests an award of $5591.60 in attorney's and paralegal fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Pl.'s App. EAJA Fees (Doc. No. 24) at 1 (Dec. 16, 2016) (requesting $5073.20 for 21.9 hours of attorney time and 8.5 hours of paralegal time for work performed on the merits litigation); Pl.'s Supp'l App. EAJA Fees (Doc. No. 27) at 1 (Jan. 5, 2017) (requesting $518.40 for 2.7 hours of attorney time for worked performed on the EAJA fee litigation).[2] Defendant, the Acting Commissioner of the Social Security Administration, opposes Plaintiff's request for EAJA fees related to the merits litigation. Def.'s Resp. (Doc. No. 25) at 1, 4-7.

         A. Entitlement to Fee Award

         The Court must award reasonable attorney's and paralegal fees to Plaintiff “if: (1) [she] is a ‘prevailing party'; (2) the position of the United States was not ‘substantially justified'; and (3) there are no special circumstances that make an award of fees unjust.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting 28 U.S.C. § 2412(d)(1)(A)); see also Harris v. R.R. Ret. Bd., 990 F.2d 519, 521 (10th Cir. 1993) (noting that reasonable fees for work performed by paralegals are recoverable under the EAJA). Here, the only contested issue is whether the Commissioner's position defending the agency's unfavorable decision on the merits was substantially justified. Def.'s Resp. at 1, 4-8; Pl.'s Reply (Doc. No. 26) at 7-10; see Hackett, 475 F.3d at 1173 (“[A] second ‘substantial justification' finding is not required before EAJA fees may be awarded to a prevailing plaintiff for time spent in the fee litigation process.” (quoting Commissioner, I.N.S. v. Jean, 496 U.S. 154, 162 (1990))).

         “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Hackett, 475 F.3d at 1172 (internal quotation marks omitted). The Commissioner's “position can be justified even though it is not correct, and . . . it 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.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). “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 (quoting United States v. Marolf, 277 F.3d 1156, 1159 (9th Cir. 2002)). However, the Tenth Circuit recognizes an exception to this rule “when the government advances a reasonable litigation position that ‘cure[s] unreasonable agency action.'” Evans v. Colvin, 640 F.App'x 731, 733 (10th Cir. 2016) (alteration in original) (quoting Hackett, 475 F.3d at 1174); see, e.g., Johns v. Astrue, 455 F.App'x 846, 847-48 (10th Cir. 2011) (affirming the district court's denial of EAJA fees upon district judge's finding that the Commissioner's harmless-error argument was substantially justified).

         1. Background

         Plaintiff protectively filed her DIB and SSI applications on November 8, 2011, alleging disability since October 21, 2011, because of a broken left hip. See Op. & Order at 1-2. Following denial of Plaintiff's applications initially and on reconsideration, a hearing was held before an Administrative Law Judge (“ALJ”) on August 29, 2013, at which Plaintiff, her sister, and a vocational expert (“VE”) all testified. See Id. at 2. On November 27, 2013, the ALJ issued an unfavorable decision concluding that Plaintiff “ha[d] not been under a disability, as defined in the Social Security Act, from October 21, 2011, through the date of [that] decision.” R. 15-16.

         On appeal, Plaintiff challenged the Commissioner's denial of benefits on the ground that the ALJ's physical residual functional capacity (“RFC”) assessment was both legally flawed and unsupported by substantial evidence in the record. See generally Pl.'s Br. (Doc. No. 15) at 7-15. Specifically, Plaintiff argued that the ALJ failed to perform a proper credibility assessment of Plaintiff's and her sister's subjective statements, and failed to weigh and explain inconsistent or ambiguous medical evidence that undercut his conclusion that, during the relevant period, Plaintiff could sustain “light work” with additional restrictions on sitting, standing, and climbing. See Id. at 7-12, 12-15. The Commissioner responded that the ALJ's RFC determination was legally and factually sound because the ALJ “expressly noted” the objective medical and other evidence “that Plaintiff demonstrated improvement with [hip] surgery resulting in the absence of disabling limitations . . . within 12 months of Plaintiff's October 2011 alleged disability onset date. Def.'s Br. (Doc. No. 21) at 5-6; see also Id. at 7-8, 9, 14-15.

         The Court reversed the Commissioner's denial of benefits because the ALJ did not describe how specific evidence supported his RFC findings, did not explain why he gave “great weight” to a reviewing physician's medical opinion that predated Plaintiff's hip replacement surgery, and overlooked significantly probative evidence of Plaintiff's medical impairments and resulting physical limitations. See generally Op. & Order at 12-19 (citing R. 11-15). As the Court explained,

“[t]he RFC assessment must be based on all of the relevant evidence in the case record” and “must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence, ” including the claimant's subjective complaints of pain or other [functionally limiting] symptoms.

Id. at 13 (quoting SSR 96-8p, 1996 WL 374184, at *5, *7 (July 2, 1996)). Given the “limited discussion in the ALJ's decision, ” particularly the absence of any discussion concerning the potential impact of “joint deterioration and bone deformation or an incomplete/extended recovery from hip replacement surgery, ” the Court could not conclude that the ALJ's RFC for “light work” with an additional sit-stand option was supported by substantial evidence in the record.[3] Id.; see also Id. at 2-3, 12-15.

         The Court also found that the ALJ's flawed analysis of Plaintiff's and her sister's subjective statements describing Plaintiff's pain and related functional limitations required reversal and remand. See Id. at 16-19. The ALJ gave “two specific reasons for not fully accepting” these statements:

The claimant alleged difficulty ambulating and severe pain; however, medical records noted the claimant reported she was doing well. Testimony noted the claimant tried not to use the wheelchair but no medical records noted a wheelchair being prescribed by a physician.

Id. at 16-17 (quoting R. 14-15). Neither of the ALJ's reasons were adequately supported by the record, however. See Id. at 17-18. First, the ALJ had relied on Plaintiff's reported comments to her orthopedic surgeon in March 2012 that “she was ‘doing well' and was ‘happy' with the way her hip felt, ” without evaluating Plaintiff's comments in the context in which they were made. Id. at 17-18. After “‘examin[ing] the record as a whole, '” particularly evidence produced after March 2012, the Court could not say that substantial evidence supported the ALJ's reliance on Plaintiff's isolated statement. Id. at 17 (quoting Jones v. Colvin, 514 F.App'x 813, 820 (10th Cir. 2013)). Second, although the record supported the ALJ's finding that no physician had prescribed a wheelchair for Plaintiff, the ALJ did not discuss “uncontroverted evidence that Plaintiff's surgeons prescribed use of a walker, Plaintiff still occasionally used a walker as late as August 2012, and . . . Plaintiff used a cane to help her walk all of the time after her second hip surgery” in December 2011. Id. at 18 (internal quotation marks omitted). Without further explanation from the ALJ, the Court could not “agree that Plaintiff's lack ...

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