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Howard v. Berryhill

United States District Court, W.D. Oklahoma

November 22, 2017

FLORENCE HOWARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE

         Before the Court are Plaintiff's Motion and Brief in Support for an Award of Attorney's Fees Under the Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412. (ECF No. 25) and Plaintiff's Supplemental Motion for an Award of Attorney's Fees Under the Equal Access to Justice Act (ECF No. 28). Specifically, Plaintiff seeks an award of fees in the amount of $5, 999.80 (ECF Nos. 25, 28). Defendant objects to any award of fees, arguing that her position was “substantially justified.” (ECF No. 23). The Court rejects Defendant's argument and GRANTS an award of fees to Plaintiff in the amount requested.

         I. ATTORNEY FEES AUTHORIZED UNDER EAJA

         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).

         Once an EAJA application is filed, the government must justify both its position in any underlying administrative proceedings and in any subsequent court litigation. See Hackett v. Barnhart, 475 F.3d 1166, 1170 (10th Cir. 2007); 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.”). Therefore, 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. The burden rests with the government to prove that its position was substantially justified. Kemp v. Bowen, 822 F.2d 966, 967 (10th Cir. 1987).

         II. PLAINTIFF IS THE PREVAILING PARTY

         Previously, the undersigned ordered: (1) reversal of the Commissioner's decision denying Plaintiff's applications for supplemental security income and disability insurance benefits, and (2) a remand for further administrative proceedings. (ECF Nos. 23 & 24). With the reversal and remand, Ms. Howard 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.

         III. PLAINTIFF IS ENTITLED TO AN AWARD OF BENEFITS

         The Court's reversal was based on: (1) the ALJ's improper evaluation of an opinion from treating physician, Dr. Juan Maldonado, (2) the ALJ's failure to evaluate Ms. Howard's anxiety utilizing the regulatory “special technique” used for evaluating mental impairments, and (3) error in the credibility analysis. (ECF No. 23:3-16).

         A. Dr. Maldonado

         Treating physician Dr. Maldonado opined that Plaintiff had the ability to:

• stand and walk less than 2 hours during an 8-hour workday,
• sit for 2 hours during an 8-hour workday, and
• occasionally and/or frequently lift and/or carry less ...

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