United States District Court, E.D. Oklahoma
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 attorney's fees in the total amount of $3, 943.80,
under the Equal Access to Justice Act (the
“EAJA”), 28 U.S.C. § 2412. See
Plaintiff's Motion and Brief in Support for an Award of
Attorney's Fees Under the Equal Access to Justice Act 28
U.S.C. § 2412 [Docket No. 23] and Plaintiff's
Supplemental Motion for an Award of Attorney's Fees Under
the Equal Access to Justice Act [Docket No. 26]. 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 sole contention of error was that
the ALJ's decision was undermined by evidence submitted
to the Appeals Council. The Commissioner's response to
the EAJA fees motion asserts that her position on appeal was
substantially justified because the arguments made before
this Court were plausible and reasonable in fact and law, and
the duty to weigh evidence is the sole province of the ALJ.
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 test
for substantial justification under the EAJA, the Supreme
Court has added, is simply one of reasonableness.”
Madron v. Astrue, 646 F.3d 1255, 1257-1258 (10th
Cir. 2011), citing Pierce v. Underwood, 487 U.S.
552, 563-564 (1988). 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.”). “In other
words, it does not necessarily follow from our decision
vacating an administrative decision that the government's
efforts to defend that decision lacked substantial
justification.” Madron, 646 F.3d at 1258. In
this case, the Court found that the ALJ's decision was
not supported by substantial evidence in light of the new
evidence submitted to the Appeals Council.
the Commissioner argues that her position was substantially
justified because of the Tenth Circuit's decision in
Vellejo v. Berryhill, 849 F.3d 951, 955 (10th Cir.
2017). The ALJ recognized this Court's acknowledgment
that Vallejo stands for the proposition that the
Appeals Council is not required to make factual findings as
to newly-submitted evidence, but ignored this Court's
distinguishing finding that an ALJ's decision must
nevertheless be supported by substantial evidence,
including newly submitted evidence. See
Docket No. 21, p. 11 (emphasis added). The Commissioner also
criticizes this Court's notation of additional evidence
submitted to the Appeals Council that calls into question the
decision of the ALJ, even though such evidence was not the
basis of reversal. The Commissioner thus challenges an award
of attorney's fees, arguing that the law was unsettled at
the time of the briefing and that Vallejo is
“congruent” with the Commissioner's
continuing arguments, despite this Court's finding to the
contrary that the decision was not based on substantial
evidence in light of all of the evidence in the record.
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 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);
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
Court therefore concludes that the Plaintiff should be
awarded attorney's fees 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 Plaintiffs Motion and Brief in Support
for an Award of Attorney's Fees Under the Equal Access to
Justice Act 28 U.S.C. § 2412 [Docket No. 23] in the
amount of $3, 709.80 and Plaintiffs Supplemental Motion for
an Award of Attorney's Fees Under the Equal Access to
Justice Act [Docket No. 26] in the amount of $234.00 are
hereby GRANTED and that the Government is hereby ordered to
pay attorney's fees in the amount of $3, 943.80 to the
Plaintiff as the prevailing party herein. IT IS FURTHER
ORDERED that if the Plaintiff's 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).