United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAN UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff's Motion for Attorney Fees
pursuant to the Equal Access to Justice Act (Dkt. # 21).
Plaintiff seeks an award of attorney fees of $6, 878.20 under
the Equal Access to Justice Act, 28 U.S.C. § 2412(d)
(EAJA). Defendant objects to plaintiff's motion for EAJA
fees and argues that her position was substantially
13, 2015, plaintiff filed this case seeking judicial review
of a decision by the Commissioner of Social Security denying
her claim for disability benefits. Dkt. # 2. The matter was
referred to a magistrate judge for a report and
recommendation, and the magistrate judge recommended that the
Court affirm the Commissioner's decision. Dkt. # 17.
Plaintiff objected to the report and recommendation, and the
Commissioner did not respond to plaintiff's objection.
Dkt. # 18. The Court found that the case should be reversed
and remanded due to an error at step five of the analysis.
The ALJ included the job of document processor as work
available in the national and regional economies that
plaintiff could perform and, in their briefing before the
magistrate judge, the parties assumed that plaintiff could
not perform this job. The Court remanded the case to allow
the ALJ to make new findings at step five as to whether jobs
existed in sufficient numbers that plaintiff could perform
with her residual functional capacity (RFC).
has filed a motion for attorney fees under the EAJA. Dkt. #
21. Under the EAJA, “a fee award is required if: (1)
plaintiff 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).
Defendant does not dispute that plaintiff is a prevailing
party and does not assert that there are any special
circumstances that would make an award of fees unjust in this
case. Dkt. # 22. The only dispute here is whether
defendant's position was substantially justified.
Id. Defendant bears the burden of showing that her
position was substantially justified by proving her case
“had a reasonable basis in law and in fact.”
Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir.
1988); see also Hackett, 475 F.3d at 1172. In other
words, defendant must show that her position was
“justified to a degree that could satisfy a reasonable
person.” Pierce v. Underwood, 487 U.S. 552,
565 (1988). Defendant's “position can be justified
even though it is not correct.” Id. at 566
argues that there were unpublished Tenth Circuit decisions
potentially supporting both parties' positions and
reasonable people could have disagreed as to the need to
remand this case. Dkt. # 22, at 6. However, published Tenth
Circuit precedent is clear that the step five evaluation is
fact-intensive and the issue of the number of jobs available
to the claimant should ordinarily be made by the ALJ.
Allen v. Barnhart, 357 F.3d 1140 (10th Cir. 2004).
In this case, the ALJ found that plaintiff could work as a
document processor and this job provided most of the jobs
available in the national and regional economies at step
five. Defendant assumed for the purpose of this litigation
that plaintiff could not perform the job of document
processor with her RFC, but still asked the Court to affirm
the ALJ's decision. Defendant asks the Court to find that
her position was substantially justified, because a wrong
decision can substantially justified as long as it is not
unreasonable. See Madron v. Astrue, 646 F.3d 1255,
1257 (10th Cir. 2011) ("When a district court reviews an
EAJA application, however, it considers (among other things)
whether the government's litigating position enjoyed
substantial justification in fact and law; that is, whether
its litigating position was reasonable even if
wrong.'"). The Court does not find that
defendant's position in this case was reasonable. There
is published Tenth Circuit precedent that there is a strong
preference for having the ALJ resolve issues as to the number
of jobs available to a claimant, and defendant essentially
conceded that plaintiff could not perform the job providing
the most support for the ALJ's step five findings. The
Court also notes that this issue was raised in plaintiffs
objection to the report and recommendation, and defendant
failed to respond to plaintiff s objection. Defendant did
include a single paragraph in its response brief before the
magistrate judge on the step five issue, but defendant did
not provide any analysis as to how the Court should consider
the potentially conflicting unpublished decisions of the
Tenth Circuit. The Court finds that defendant's
litigation position was not substantially justified, and
plaintiffs motion for EAJA fees (Dkt. #21) should be granted.
THEREFORE ORDERED that Plaintiff s Motion for Attorney Fees
pursuant to the Equal Access to Justice Act (Dkt. # 21) is
granted, and plaintiff shall be awarded attorney fees in the