United States District Court, N.D. Oklahoma
TYRONE D. JOHNSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
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. # 23).
Plaintiff seeks an award of attorney fees of $6, 494.80 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
28, 2015, plaintiff filed this case seeking judicial review
of a decision by the Commissioner of Social Security denying
his 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. # 19.
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.
Defendant conceded that plaintiff could not perform five of
the six jobs identified by the administrative law judge
(ALJ), and this substantially reduced the number of jobs
available in the national and regional economies that
plaintiff could perform. 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 his residual functional capacity (RFC). The case was
also remanded to clarify certain aspects of the vocational
expert's testimony and the ALJ's reliance on that
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. # 24, 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 perform six
jobs that were available in the national and regional
economies. However, defendant assumed for the purpose of this
litigation that plaintiff could not perform five of those six
jobs with his 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 be 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 conceded that
plaintiff could not perform five of the six jobs supporting
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 discuss the ALJ's
step five findings in her response to plaintiff s opening
brief, 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 plaintiff s motion for EAJA fees
(Dkt. # 23) should be granted.
THEREFORE ORDERED that Plaintiff s Motion for Attorney Fees
pursuant to the Equal Access to Justice Act (Dkt. # 23) is
granted, and plaintiff shall be awarded attorney fees in the