United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's Motion for Attorney's Fees
Under the Equal Access to Justice Act (EAJA). (ECF No. 19).
Specifically, Plaintiff seeks an award of fees in the amount
of $4, 863.00 (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, 828.00.
ATTORNEY FEES AUTHORIZED UNDER 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).
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
PLAINTIFF IS THE PREVAILING PARTY
the Court ordered: (1) reversal of the Commissioner's
decision denying Plaintiff's application for disability
insurance benefits and (2) a remand for further
administrative proceedings (ECF Nos. 17 & 18). The
reversal was based on the ALJ's failure to specify the
frequency of the “sit-stand” option which had
been allowed in the RFC. (ECF No. 17:4-9). With the reversal
and remand, Mr. Hardzog 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.
PLAINTIFF IS ENTITLED TO AN AWARD OF BENEFITS
administrative decision, the ALJ had concluded that Mr.
Hardzog could perform light, unskilled work with the added
restriction of needing to “occasionally sit/stand at
the workstation” “without a loss of
productivity.” (TR. 29). But as noted by the Court, the
RFC was silent regarding how often Plaintiff would have to
change positions to not lose productivity. (ECF No. 17:6).
The omission was critical, because with the restriction, the
Vocational Expert (VE) stated that Plaintiff could perform
only unskilled work, which the SSA has stated is
“particularly structured so that a person cannot
ordinarily sit or stand at will.” (ECF No. 17:6)
(citing SSR 83-12, 1983 WL 31253, at *4 (Jan. 1, 1983)).
defense of the Commissioner's position as
“substantially justified, ” Defendant argues that
the Court improperly relied on SSR 96-9p in reaching its
decision. (ECF No. 21:4-7). SSR 96-9p explains that for an
individual who is capable of doing sedentary work,
“[t]he RFC assessment must be specific as to the
frequency of the need to alternate sitting and standing and
the length of time needed to stand.” SSR 96-9p, 1996 WL
374185, at *7 (July 2, 1996). In the Order reversing the
Commissioner's decision, the Court noted that SSR 96-6p,
as written “is specifically applicable to sedentary
work and the RFC in the present case limited Plaintiff to
less than a full range of light work.” (ECF No. 17:5).
Even so, the Court concluded that 96-9p was relevant to Mr.
Hardzog's case based on the definition of light work
which required a “good deal of walking or standing, or
. . . sitting most of the time, ” and the fact that
the Tenth Circuit had applied the ruling to cases involving
light work under similar circumstances. (ECF No. 17:4-5).
to Defendant: (1) “the ALJ actually found a higher
exertional RFC than the full range of light work” and
(2) the ALJ's use of a VE eradicated any outstanding
issue with regard to the frequency with which Plaintiff
needed to alternate positions. (ECF No. 21:6-7). Neither of
the Commissioner's arguments substantially justify
Defendant's position. First, contrary to Defendant's
argument that the ALJ found an RFC for more than the full
range of light work, the ALJ specifically stated that Mr.
Hardzog could: “[P]erform light work as defined in 20
C.F.R. 404.1567(b) [with additional restrictions].”
(TR. 29). Second, as noted by the Court in the Order of
reversal, “the VE's testimony cannot provide
substantial evidence to support the ALJ's decision”
because the hypothetical question to the VE “lack[ed]
key facts, ” namely the frequency with which Plaintiff
would need to alternate positions in order to not lose
productivity. In addition, Defendant fails to acknowledge a
key part of the Court's decision-that regardless of
whether SSR 96-9p applied, SSR 83-12 did apply, because the
ALJ found that Plaintiff was limited to performing only
unskilled work. As stated, SSR 83-12 specifically requires
that in cases involving unskilled work, resolution of the
sit-stand frequency is required. SSR 83-12, at *4.
defense of applying SSR 96-6p, only to cases involving only
sedentary work, Defendant argues that “courts have long
recognized that considerable weight should be accorded to an
executive department's construction of a statutory scheme
it is entrusted to administer” and “courts grant
an agency's interpretation of its own regulations
considerable legal leeway.” (ECF No. 21:6) (internal
citation omitted). But in doing so, Defendant has refused to
acknowledge the applicability of SSR 83-12, as explained in
the Court's Order. This legal error prevents the Court
from concluding that the Commissioner's position was
AMOUNT OF RECOVERABLE FEE
did not meet her burden of proof to show that the
government's position was substantially justified.
Further, the undersigned knows of no special circumstances
which would make an award of attorney fees unjust. Thus, the