United States District Court, E.D. Oklahoma
TERESA C. GREENLEE, Plaintiff,
COMMISSIONER of the Social Security Administration, Defendant.
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. She
seeks attorney's fees in the total amount of $4, 608.40,
under the Equal Access to Justice Act (the
“EAJA”), 28 U.S.C. § 2412. See
Plaintiff's Application for Award of Attorney's Fees
Pursuant to the Equal Access to Justice Act 28 U.S.C. §
2412 [Docket No. 24] and Plaintiff's Supplemental
Application for Award of Attorney's Fees Pursuant to the
Equal Access to Justice Act 28 U.S.C. § 2412 [Docket No.
27]. 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
appeal, the Plaintiff's raised arguments that the ALJ
failed to properly assess her back impairment, failed to
properly support his step two findings, and failed to
properly assess her credibility. This Court determined that
the ALJ erred in assessing the claimant's back impairment
at step four. 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 because the ALJ
connected no evidence in the record related to the
claimant's back impairment (or all her impairments in
combination) to his findings regarding the claimant's
RFC. The Court thus concluded that a consultative examination
would have been helpful in light of this lack of connection
from evidence to conclusion, and that the ALJ's
discretion to order a CE was not boundless. The Commissioner
nevertheless asserts that her position was substantially
justified because this record was not undeveloped or unclear,
and the need was not clearly established in this case. The
Commissioner thus challenges an award of attorney's fees,
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. Inasmuch as it was the
ALJ's obligation to provide a reasonable basis in the
first instance, it is difficult to see how anything said on
appeal could justify the ALJ's failures at the
administrative level in this case. 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 Cir. 1991).
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 Application for Award of
Attorney's Fees Pursuant to the Equal Access to Justice
Act 28 U.S.C. § 2412 [Docket No. 24] and Plaintiffs
Supplemental Application for Award of Attorney's Fees
Pursuant to the Equal Access to Justice Act 28 U.S.C. §
2412 [Docket No. 27] are hereby granted to the extent that
the Government is ordered to pay attorney's fees in the
amount of $4, 608.40 to the Plaintiff as the prevailing party
herein. IT IS FURTHER ORDERED that if the Plaintiffs 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).