United States District Court, N.D. Oklahoma
OPINION AND ORDER TO GRANT PLAINTIFF'S MOTION FOR
B. Cohn United States Magistrate Judge
the Court is Plaintiff's Motion for Attorney's Fees
pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d). (Doc. 24). In
Plaintiff's motion, she seeks approval of an attorney fee
award of $4, 598.90 pursuant to 28 U.S.C. §
STANDARD OF REVIEW
EAJA provides for an award of attorney fees to a prevailing
party, other than the United States, in a civil action
brought by or against the United States, unless the court
finds the position of the United States was substantially
justified or special circumstances make an award unjust.
See 28 U.S.C. § 2412(d)(1)(A). However, the
EAJA is not an automatic fee shifting statute. See
Federal Election Commission v. Rose, 806 F.2d 1081, 1087
(D.C. Cir. 1986). Rather, a party is entitled to fees only if
the government was not “substantially justified”
in its actions. 28 U.S.C. § 2412(d)(1)(A). As the
Supreme Court has recognized, substantially justified means
“justified in substance or in the main”; in other
words, “justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487
U.S. 552, 565 (1988).
substantial justification standard under the EAJA should not
be equated with the substantial evidence standard under the
Social Security Act, see 42 U.S.C. § 405(g),
and fees should not be automatically awarded any time that
the Commissioner is unsuccessful on the merits. See
Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir. 1988).
The Tenth Circuit has summarized substantial justification as
“The test for substantial justification in this circuit
is one of reasonableness in law and fact. Thus, the
government's position must be justified to a degree that
could satisfy a reasonable person ... [and] can be justified
even though it is not correct. The government is more likely
to meet this standard when the legal principle on which it
relied is “unclear or in flux. Martinez v.
Sec'y of Health & Human Servs., 815 F.2d 1381,
1383 (10th Cir. 1987).
Evans v. Colvin, 640 Fed.Appx. 731, 733 (10th Cir.
2016) (unpublished). The question of reasonableness in the
context of the EAJA is a separate and distinct question from,
and reviewed under a lower standard than, the
“substantial evidence” standard, which governs
review of the merits of disability determinations. See
Underwood, 487 U.S. at 568-69; see also 131
Cong. Rec. 4763 (daily ed. June 24, 1985) (statement of Rep.
Kindness); H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10-11,
reprinted in 1980 U.S. Code Cong. & Ad. News 4989. Stated
another way, the Commissioner's position may be
substantially justified even if it is not correct and even if
a court found that substantial evidence did not support her
decision. See Underwood, 487 U.S. at 566 n.2.
Moreover, the Supreme Court has explained that
“substantially justified” typically does not mean
“justified to a high degree”; rather, the
standard is satisfied if there is a “genuine
dispute.” Underwood, 487 U.S. at 565 (citing
Quaker Chair Corp. v. Litton Business Systems, Inc.,
71 F.R.D. 527, 535 (S.D. N.Y. 1976) (genuine dispute means
“if reasonable people could differ as to the
[appropriateness of the contested action]”)). A court
at the EAJA stage must make a fresh, independent evaluation
through an EAJA perspective, and reach a judgment independent
from the earlier decision on the merits. See Rose,
806 F.2d at 1087.
deciding whether the government was substantially justified,
the court must examine both the underlying agency conduct as
well as the Commissioner's defense of that conduct.
See 28 U.S.C. § 2412(d)(2)(D); Comm'r,
INS v. Jean, 496 U.S. 154, 161-62 (1990) (explaining
that “position of the United States” encompasses
agency's pre-litigation and litigation positions). As the
Evans Court noted:
“Position of the United States' means, in addition
to the position taken by the United States in the civil
action, the action or failure to act by the agency upon which
the civil action is based.” 28 U.S.C. §
2412(d)(2)(D). The general rule is that EAJA fees
“should be awarded where the government's
underlying action was unreasonable even if the government
advanced a reasonable litigation position.” See
Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th Cir.
2007). But we have recognized an exception when the
government advances a reasonable litigation position that
“cure[s] unreasonable agency action.”
Id. at 1173-74. In the social security context, we
have interpreted that exception to include “when the
Commissioner reasonably (even if unsuccessfully) argues in
litigation that the ALJ's errors were harmless.”
Groberg v. Astrue, 505 Fed.Appx. 763, 765-66 (10th
Evans, 640 Fed.Appx. 731, 733. In accordance with
this standard, the Court reviews the Plaintiff's motion.
BACKGROUND AND COMMISSIONER RESPONSE
March 26, 2018, the Court entered judgment in favor of
Plaintiff and remanded the case for further proceedings under
Sentence Four of 42 U.S.C. §405(g). Docs. 22, 23. As the
Court granted the relief Plaintiff sought in bringing this
appeal, Plaintiff became the prevailing party in this action.
Shalala v. Shafer, 509 U.S. 292 (1993) (holding that
a plaintiff obtaining a remand pursuant to sentence four of
42 U.S.C. § 405(g) is a prevailing party). The Commissioner
opposes Plaintiff's motion, arguing her position was
substantially justified. (Comm'r Br. at 1-7, Doc. 25).
argues her position in the case was substantially justified
and the ALJ was correct in finding Plaintiff's mental
impairments not “severe” because he noted several
providers who found Plaintiff “alert and
oriented.” (Comm'r Br. at 4). As the Court found in
its ruling, noting a plaintiff is “oriented times
three” or “oriented to time and place, ”
cannot be substantial evidence to refute the findings of