United States District Court, W.D. Oklahoma
L. RUSSELL UNITED STATES DISTRICT JUDGE.
December 15, 2016, the Court entered its Judgment reversing
the Commissioner's final decision denying Plaintiff
Michelle Hull's application for disability insurance
benefits and remanding the case for further proceedings.
Plaintiff thereafter sought an award of attorney and
paralegal fees pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. (Doc. No. 30),
which she supplemented on May 9, 2017 (Doc. No. 37).
Defendant, the Acting Commissioner of the Social Security
Administration, opposes Plaintiff's request for EAJA
fees. The Court referred the fee issue to Magistrate Judge
Bernard M. Jones for review, and on April 20, 2017, Judge
Jones issued a Report and Recommendation wherein he
recommended the fee award be granted. The matter is currently
before the Court on the Commissioner's timely objection
to the Report and Recommendation, which gives rise to the
Court's obligation to undertake a de novo review
of those portions of the Report and Recommendation to which
specific objection is made. Having conducted this de
novo review, the Court finds as follows.
Court must award reasonable attorneys' 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
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). The government bears the burden of
establishing that its position was substantially justified,
and it must justify both its position in the underlying
administrative proceedings and this court litigation.
Hackett, 475 F.3d at 1169-70. 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)).
Court reversed the decision of the Commissioner in this case
because the administrative law judge failed to properly
address the opinion of Plaintiff's treating physician,
and he picked through the medical records, choosing entries
from the treating physician's records that supported his
ultimate conclusion that Ms. Hull was not disabled while
seemingly ignoring evidence in the same records that
supported her contention of disability. The law requires the
administrative law judge to “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). It is error to pick and choose among medical
reports and use only the favorable portions thereof.
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166
(10th Cir. 2012). This legal error, which was the
basis for remand, leads the Court to conclude that the
decision of the administrative law judge was not arguably
defensible. As such, the Court finds that the Commissioner
has failed to meet her burden to establish that she was
substantially justified both at the administrative level and
in this litigation.
Commissioner takes issue with Judge Jones' conclusion
that her position before the Court was not substantially
justified, because she “impermissibly attempted to
‘recast Plaintiff's first claim of error',
i.e., that the ALJ committed reversible legal error by
failing to properly evaluate the opinion of her treating
psychiatrist, and instead ‘disingenuously'
addressed ‘whether the ALJ reasonably considered
medical evidence opinions.'” Report and
Recommendation, Doc. No. 34, p. 4. (quoting Report and
Recommendation Doc. No. 25)(further citation omitted). She
asserts in the objection:
The Magistrate Judge also characterizes as disingenuous the
Commissioner's arguments in her brief with respect to Dr.
Darbe's opinion, citing the Commissioner's broad
subheading referencing the ALJ's reasonable consideration
of medical source opinions, but disregards the
Commissioner's specific and extensive contentions as to
Dr. Darbe's evidence and opinion and the ALJ's
consideration of such.
No. 35, p. 3 (citations omitted). The Court disagrees with
the Commissioner's contention that Judge Jones'
recommendation is based solely on the broad subheading of her
argument. The entire section of the Commissioner's brief
addresses the evidence supporting the administrative law
judge's decision and concludes by noting that
“[t]he above favorable objective medical findings
provided substantial evidence supporting the
Commissioner's decision.” Doc. No. 24, p. 7. This
argument, however, was not directly responsive to the issues
raised by Plaintiff.
Court finds that given the legal errors described in both the
Report and Recommendation recommending reversal and the
current Report and Recommendation that the Commissioner has
failed to show that her position was substantially justified.
As a result, EAJA fees are appropriate and the Report and
Recommendation is hereby ADOPTED. Because there was no
objection by the Commissioner to the amount of Plaintiffs
initial fee request, $7, 082.60, he recommended that full
amount be granted. Plaintiff has now supplemented her fee
request to include fees for the time allocated to litigating
the current fee dispute, and as a result seeks a total of $8,
375.50. The additional amount of fees is appropriate under
Commissioner, INS v. Jean, 496 U.S. 154, 159 (1990).
Accordingly, the Court hereby GRANTS both the initial motion
and the supplement. Plaintiff is hereby awarded $8, 370.50 in
to the Commissioner's usual practice, the check should be
made payable to Plaintiff Hull 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 Act, counsel shall
refund the smaller award to plaintiff pursuant to Weakley
v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
 The Commissioner also contends the
Magistrate Judge failed to respond to a particular argument,
presented in her brief in opposition to Plaintiff's fee
request. (See ...