United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE.
September 11, 2017, the Court entered a Judgment reversing
the decision of the Commissioner of the Social Security
Administration (“SSA”) and remanding this case
for further administrative proceedings. See J. (Doc.
No. 26); see also Prince v. Berryhill, No.
CIV-15-933-CG, 2017 WL 3977926 (W.D. Okla. Sept. 11, 2017).
Plaintiff Susan Gail Prince now moves for an award of
attorney's fees in the amount of $6477.00 pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. See Pl.'s Mot. Att'y Fees (Doc.
No. 27); Pl.'s Suppl. (Doc. No. 30). Defendant has
objected to the Motion (Def.'s Obj. (Doc. No. 28)), and
Plaintiff has replied (Pl.'s Reply (Doc. No. 29)).
Attorney Fee Awards Under the EAJA
2412(d) of the EAJA provides that a prevailing party other
than the United States shall be awarded reasonable fees in a
civil action “unless the court finds that the position
of the United States was substantially justified or that
special circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A), (d)(2)(A). The “position of the
United States” includes not only the position taken by
the government in the present civil action but also
“the action or failure to act by the agency upon which
the civil action is based.” Id. §
2412(d)(2)(D). “[T]he required ‘not substantially
justified' allegation imposes no proof burden on the fee
applicant”; “the Government is aware, from the
moment a fee application is filed, that to defeat the
application on the merits, it will have to prove its position
‘was substantially justified.'”
Scarborough v. Principi, 541 U.S. 401, 403 (2004);
accord Hackett v. Barnhart, 475 F.3d 1166, 1169
(10th Cir. 2007). To make this showing, the government must
prove that its case “had a reasonable basis in law and
in fact.” Hadden v. Bowen, 851 F.2d 1266, 1267
(10th Cir. 1988). The term “substantially
justified” has been defined as “‘justified
in substance or in the main-that is, justified to a degree
that could satisfy a reasonable person.'”
Id. (quoting Pierce v. Underwood, 487 U.S.
552, 565 (1988)); see also 28 U.S.C. §
2412(d)(1)(B) (prescribing that whether the government's
position was substantially justified is determined on the
basis of the record before the court, including the record of
the agency's action or failure to act upon which the
civil action was based).
Whether Plaintiff Is the Prevailing Party
noted above, the Court previously reversed the
Commissioner's decision denying Plaintiff's
applications for disability insurance benefits and
supplemental security income under the Social Security Act,
42 U.S.C. §§ 401-434, 1381-1383f. Having obtained
reversal and remand under sentence four of 42 U.S.C. §
405(g), Plaintiff is considered the “prevailing
party” for purposes of the EAJA. See J. at 1;
28 U.S.C. § 2412(d)(2)(B); Shalala v. Schaefer,
509 U.S. 292, 300-01 (1993).
Whether the Government Has Shown Its Position Was
administrative proceedings below, the ALJ committed multiple
errors. First, the ALJ failed to address Plaintiff's
documented vision problems but found that Plaintiff was able
to perform past relevant work that requires reading and
frequent near visual acuity and, alternatively, two jobs that
require frequent near visual acuity. See Prince,
2017 WL 3977926, at *2-3. Next, the ALJ's decision failed
to reflect that he properly considered all of the evidence in
the record regarding Plaintiff's back and leg pain and
did not properly resolve the evidentiary inconsistency
between certain records. See Id. at *3-5. Relatedly,
the ALJ failed to adequately explain his assessment that
Plaintiff was able to stand and/or walk six hours out of an
eight-hour workday in light of contradictory medical records
and postdecision evidence that was accepted into record by
the SSA Appeals Council. See Id. at *5-6.
therefore was required based upon a lack of substantial
evidence to uphold the ALJ's residual functional capacity
determination. See Id. at *6-7. The Court declined
to address other propositions of error raised by Plaintiff.
See Id. at *6 n.9, *7 (quoting Watkins v.
Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).
objects to any award of fees, arguing that the
government's position was substantially justified with
respect to both denying Plaintiff's applications for
benefits and defending that denial in this Court.
See Def.'s Obj. at 2-7; see also 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.”). While thorough, the ALJ's assessment
of the evidence reflected legal errors and resulted in a
residual functional capacity assessment that lacked
substantial evidence and did not comport with Tenth Circuit
authority in multiple respects. See Prince, 2017 WL
2017 WL 3977926, at *2-6. Defendant now repeats the arguments
previously made in support of affirmance but does not show
“a reasonable basis in law and in fact” for the
ALJ's denial of benefits. Hadden, 851 F.2d at
1267; see Def.'s Obj. at 2-7;
Gutierrez, 953 F.2d at 584-86 (finding that district
court abused its discretion in denying fees to plaintiff
where the ALJ's findings were unreasonable based on the
record before the ALJ).
implies that fees should not be awarded because Defendant
raised reasonable arguments in this Court as to why the
ALJ's errors were harmless. See Def.'s Obj.
at 7. “EAJA fees generally should be awarded where the
government's underlying action was unreasonable even if
the government advanced a reasonable litigation
position.” Hackett, 475 F.3d at 1174 (internal
quotation marks omitted). The Tenth Circuit has recognized an
exception to this rule, however, “when the Commissioner
reasonably (even if unsuccessfully) argues in litigation that
the ALJ's errors were harmless.” Groberg v.
Astrue, 505 F. App'x 763, 765 (10th Cir. 2012).
Defendant, however, conceded no error in the ALJ's
decision and did not argue that any relevant errors in the
ALJ's assessment should be overlooked as harmless.
See Def.'s Br. (Doc. No. 24) at 5-15. Rather,
Defendant contended consistently that the ALJ's
consideration of the evidence was proper and all relevant
findings in the decision were entirely supported by
substantial evidence. See Id. at 5-7, 9-15.
Defendant thus has not shown that her litigation position
“cured unreasonable agency action.”
Groberg, 505 F. App'x at 768 (alteration and
internal quotation marks omitted).
has not shown that this case is “exceptional” or
that the United States' position before the SSA and this
Court was substantially justified. Id. at 765, 768;
see 28 U.S.C. § 2412(d)(1)(A), (B), (d)(2)(D).
Whether Plaintiff's Fee Request Is Reasonable
Court is aware of no special circumstances that would make an
award of attorney's fees unjust. See 28 U.S.C.
§ 2412(d)(1)(A). Thus, the only remaining issue is the
reasonableness of ...