United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE
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). 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.
Entitlement to Fee Award
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))).
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).
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.”
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.
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. Id.; see also Id. at
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 ...