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Murray v. Berryhill

United States District Court, W.D. Oklahoma

March 30, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.



         On September 12, 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 Murray v. Berryhill, No. CIV-15-364-CG, 2017 WL 4010868 (W.D. Okla. Sept. 12, 2017). Plaintiff James Edward Murray now moves for an award of attorney's fees in the amount of $5733.30 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)).

         I. Attorney Fee Awards Under the EAJA

         Section 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).

         II. Whether Plaintiff Is the Prevailing Party

         As 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).

         III. Whether the Government Has Shown Its Position Was Substantially Justified

         In the administrative proceedings below, the ALJ committed legal error by failing to adequately link his credibility determination to substantial evidence. See Murray, 2017 WL 4010868, at *2-6. Reversal was therefore required. The Court declined to address other propositions of error raised by Plaintiff. See Id. at *6 (quoting Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th Cir. 2003).

         Defendant 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 1-7; 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.”). Defendant 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 5-6.

         Defendant argues that the government's position was substantially justified in light of Tenth Circuit case law proposing that courts not “insist on technical perfection” in ALJ decisions. Def.'s Obj. at 5 (citing Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir. 2012)); see also Davis v. Erdmann, 607 F.2d 917, 918 n.1 (10th Cir. 1979); Wall v. Astrue, 561 F.3d 1048, 1068 (10th Cir. 2009). Moreover, Defendant argues that the Tenth Circuit has “recently upheld a district court's determination that the Commissioner was substantially justified under similar circumstances where the basis for remand was that the ALJ's articulation was less than ideal, ” though this case involved articulation of the weight accorded a medical opinion, not articulation in the credibility analysis. Def.'s Obj. at 6 (citing Hays v. Berryhill, 694 Fed.Appx. 634 (10th Cir. 2017)).

         The ALJ's credibility determination, however, did not comport with Tenth Circuit authority requiring that credibility determinations be “closely and affirmatively linked” to substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); Wilson v. Astrue, 602 F.3d 1136, 1144 (10th Cir. 2010); Murray, 2017 WL 4010868, at *3-6. Moreover, Defendant's arguments ignore the fact that, in addition to the ALJ's error of failing to articulate the link between the credibility determination and substantial evidence, the ALJ also took facts out of context. See Murray, 2017 WL 4010868, at *4-5; Sisco v. U.S. Dep't of Health & Human Serv., 10 F.3d 739, 743 (10th Cir. 1993) (explaining that an ALJ cannot support his credibility analysis “by taking Plaintiff's testimony out of context and selectively acknowledging parts of her statements while leaving important segments out”); Phillips v. Colvin, No. CIV-13-61-D, 2014 WL 1689686, at *2-4 (W.D. Okla. April 29, 2014). The mischaracterization of evidence to support an adverse credibility determination is sufficient to preclude a finding of substantial justification, even where there is a genuine dispute regarding whether substantial evidence supported the credibility determination. See, e.g., Sitsler v. Astrue, No. CIV-08-592-PJC, 2011 WL 1694452, at *1 (N.D. Okla. May 4, 2011); Whelan v. Colvin, No. CIV-15-129-R, 2016 WL 5210755, at *1-2 (W.D. Okla. Aug. 3, 2016) (R. & R.), adopted, 2016 WL 5210802 (Sept. 21, 2016).

         Defendant has not shown that the United States' position before the SSA and this Court was substantially justified. See 28 U.S.C. § 2412(d)(1)(A), (B), (d)(2)(D).

         IV. Whether Plaintiff's Fee Request Is Reasonable

         The Court is aware of no special circumstances that would make an award of attorney's fees unjust. See 28 U.S.C. ยง 2412(d)(1)(A). Thus, the only remaining issue is the reasonableness of ...

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