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James v. Berryhill

United States District Court, N.D. Oklahoma

June 11, 2018

LISA MICHELLE JAMES, Plaintiff,
v.
NANCY A. BERRYHILL,[1] Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          OPINION AND ORDER TO GRANT PLAINTIFF'S MOTION FOR ATTORNEY FEES

          Gerald B. Cohn United States Magistrate Judge

         Before 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. § 2412.[2]

         I. STANDARD OF REVIEW

         The 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).

         The 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 follows:

“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).[3] 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.

         In 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 Cir. 2012).

Evans, 640 Fed.Appx. 731, 733. In accordance with this standard, the Court reviews the Plaintiff's motion.

         II. BACKGROUND AND COMMISSIONER RESPONSE

         On 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).[4] The Commissioner opposes Plaintiff's motion, arguing her position was substantially justified. (Comm'r Br. at 1-7, Doc. 25).

         III. ANALYSIS

         Commissioner 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 ...


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