United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.
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)).
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 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.
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.
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.
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.
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).
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 ...