United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
the Court are Plaintiff's Application for Award of
Attorney's Fees Pursuant to the Equal Access to Justice
Act 28 U.S.C. § 2412 (ECF No. 25) and Plaintiff's
Supplemental Application for Award of Attorney's Fees
Pursuant to the Equal Access to Justice Act 28 U.S.C. §
2412 (ECF No. 28). Specifically, Plaintiff seeks an award of
fees in the amount of $6, 109.30 (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
ATTORNEY FEES AUTHORIZED UNDER 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).
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).
PLAINTIFF IS THE PREVAILING PARTY
the undersigned ordered reversal of the Commissioner's
decision denying Plaintiff's application for disability
insurance benefits and a remand for further administrative
proceedings. (ECF Nos. 23 & 24). With the reversal and
remand, Ms. Kerr 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.
PLAINTIFF IS ENTITLED TO AN AWARD OF BENEFITS
Court's reversal was based on the ALJ's improper
evaluation of opinions from a physician's assistant,
Krista Braud. (ECF No. 23:4-9). Ms. Braud had treated
Plaintiff for over three years, noting that Ms. Kerr suffered
from hip pain and peripheral neuropathy. (ECF No. 23:5). Ms.
Braud also noted that Plaintiff suffered from an unsteady
gait, which prompted Ms. Braud to prescribe Plaintiff a
rolling walker. (ECF No. 23:5).
the ALJ mentioned Ms. Braud, he omitted any discussion of her
findings that Plaintiff had suffered from an unsteady gait
and required an assistive device to ambulate. See
ECF No. 25:6-9. As the Court explained, the ALJ erred in
failing to discuss Ms. Braud's opinion which conflicted
with the RFC determination which allowed for standing and
walking 6 hours during an 8-hour workday with no
accommodation for Ms. Kerr's use of an assistive device.
(ECF No. 25:6-9).
arguing that the Commissioner's position was
“substantially justified, ” Ms. Berryhill
reiterates the argument she made on appeal, citing various
medical records and arguing that as a whole, the records
supported the RFC determination. (ECF. No. 26:4-5). But the
issue before the Court was the ALJ's treatment of Ms.
Braud's opinion, not whether the RFC was supported by
substantial evidence. As the Court stated, the ALJ has a duty
to explain the weight given to “other source, ”
evidence, to “ensure that the discussion of the
evidence in the determination or decision allows a claimant
or subsequent reviewer to follow the adjudicator's
reasoning[.]” (ECF No. 23:7, citing Titles II
and XVI: Considering Opinions and Other Evidence from Sources
Who are not “Acceptable Medical Sources” in
Disability Claims; Considering Decisions on Disability by
Other Governmental and Nongovernmental Agencies, 2006 WL
2329939, at *6 (SSR 06-3p)). The ALJ committed legal error in
failing to explain his treatment of Ms. Braud's opinions.
(ECF No. 23:7-9).
the legal error, the Court remanded the case for a
re-evaluation of Ms. Braud's opinion. (ECF No, 23:9).
Until the ALJ properly evaluates Ms. Braud's opinion, a
finding on whether the RFC was supported by substantial
evidence cannot be made, as the re-examination of the opinion
could affect the ultimate RFC findings. Accordingly, the
Court finds Ms. Berryhill's argument unconvincing and
concludes that her position was not “substantially
justified.” Accordingly, the Court finds that an award
of EAJA fees is appropriate.
AMOUNT OF RECOVERABLE FEE
Berryhill did not meet her burden of proof to show that the
government's position was “substantially
justified.” Further, the undersigned knows of no
special circumstances which would make an award of attorney
fees unjust. Thus, ...