United States District Court, E.D. Oklahoma
SUSAN A. EVANS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration,  Defendant.
OPINION AND ORDER AWARDING ATTORNEYS' FEES TO THE
PLAINTIFF UNDER THE EAJA
P. Shreder United States Magistrate Judge.
Plaintiff was the prevailing party in this appeal of the
Commissioner of the Social Security Administration's
decision denying benefits under the Social Security Act. He
seeks attorneys' fees in the amount of $7, 562.00, under
the Equal Access to Justice Act (the “EAJA”), 28
U.S.C. § 2412. See Plaintiff's Application
for an Award of Attorneys' Fees Under the Equal Access to
Justice Act 8 U.S.C. § 2412 [Docket No. 21]. The
Commissioner objects to the award of fees and urges the Court
to deny the request. For the reasons set forth below, the
Court concludes that the Plaintiff should be awarded the
requested fees under the EAJA as the prevailing party herein.
appeal, the Plaintiff's argued that the ALJ erred in
assessing her RFC, particularly with regard to limitations
with regard to maintaining concentration, persistence, and
pace, and also erred in evaluating the opinion of a treating
physician. This Court agreed that the ALJ did err in
evaluating the opinion evidence in the record, and reversed
with the instructions for the ALJ to properly consider the
medical and other source evidence. See Docket No.
19. The Commissioner's opposition to the present fee
request is based on the assertion that her position with
regard to the ALJ's analysis was substantially justified
because “a reasonable person” could find the
ALJ's analysis sufficient. See 28 U.S.C. §
2412(d)(1)(A) (“[A] court shall award to a prevailing
party . . . fees and other expenses . . . unless the court
finds that the position of the United States was
substantially justified or that special circumstances make an
award unjust.”). The Court disagrees. In order to
establish substantial justification, the Commissioner must
show that there was a reasonable basis for the position she
took not only on appeal but also in the administrative
proceedings below. See, e. g., Gutierrez v.
Sullivan, 953 F.2d 579, 585 (10th Cir. 1992) (“We
consider the reasonableness of the position the Secretary
took both in the administrative proceedings and in the civil
action Plaintiff commenced to obtain benefits.”),
citing Fulton v. Heckler, 784 F.2d 348, 349 (10th
Cir. 1986). See also Marquez v. Colvin, 2014 WL
2050754, at *2 (D. Colo. May 16, 2014) (“For purposes
of this litigation, the Commissioner's position is both
the position it took in the underlying administrative
proceeding and in subsequent litigation defending that
position.”). The Commissioner attempts to re-litigate
the arguments previously raised, asserting that the ALJ's
findings were not unreasonable. But this Court has already
ruled that the ALJ's findings were reversible error and
that he did not provide the requisite analysis. Inasmuch as
it was the ALJ's obligation to provide such a proper
analysis, see, e. g., Clifton v. Chater, 79
F.3d 1007, 1009 (10th Cir. 1996) (“In the absence of
ALJ findings supported by specific weighing of the evidence,
we cannot assess whether relevant evidence adequately
supports the ALJ's conclusion[.]”). See also
Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir.
2001) (“Although we review the ALJ's decision for
substantial evidence, ‘we are not in a position to draw
factual conclusions on behalf of the ALJ.'”),
quoting Prince v. Sullivan, 933 F.2d 598, 603 (7th
Cir. 1991), it is difficult to see how anything said on
appeal could justify the ALJ's failure to do so in light
of this Court's findings with regard to the ALJ's
assessment regarding the analysis of the treating physician
and consultative examiner. See Hackett v. Barnhart,
475 F.3d 1166, 1174 (10th Cir. 2007) (“[W]e hold that
EAJA ‘fees generally should be awarded where the
government's underlying action was unreasonable even if
the government advanced a reasonable litigation
position.'”), quoting United States v.
Marolf, 277 F.3d 1156, 1159 (9th Cir. 2002).
Court therefore concludes that the Plaintiff should be
awarded attorneys' fees and costs as the prevailing party
under the EAJA. See, e. g., Gibson-Jones v. Apfel,
995 F.Supp. 825, 826-27 n.3 (N.D. Ill. 1998) (holding that
the Commissioner's position was not substantially
justified where the ALJ provided an inadequate basis for
denying benefits and adding: “It would be unfair to
require Ms. Gibson-Jones to appeal her denial of benefits and
then not award her attorney's fees because the ALJ is
given a second chance to support his position.”).
IT IS ORDERED that the Plaintiff's Application for an
Award of Attorneys' Fees Under the Equal Access to
Justice Act 8 U.S.C. § 2412 [Docket No. 21] is hereby
GRANTED and that the Government is hereby ordered to pay
total attorney's fees in the amount of $7, 562.00 to the
Plaintiff as the Prevailing party herein. IT IS FURTHER
ORDERED that if the Plaintiffs attorney is subsequently
awarded any fees pursuant to 42 U.S.C. § 406(b)(1), said
attorney shall refund the smaller amount of such fees to the
Plaintiff pursuant to Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir. 1986).
 On January 23, 2017, Nancy A.
Berryhill became the Acting Commissioner of Social Security.
In accordance with Fed.R.Civ.P. 25(d), Ms. Berryhill is
substituted for Carolyn Colvin ...