United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES MAGISTRATE JUDGE
March 13, 2018, 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. 25); see also Haese v. Berryhill, No.
CIV-17-15-CG, 2018 WL 1304840 (W.D. Okla. Mar. 13, 2018).
Plaintiff David Scott Haese now moves for an award of
attorney's fees in the amount of $6587.40 pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. See Pl.'s Mot. Att'y Fees (Doc.
No. 26). Defendant has objected to the Motion (Def.'s
Obj. (Doc. No. 27)), and Plaintiff has replied (Pl.'s
Reply (Doc. No. 28)).
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 based on
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 erred in multiple
ways and failed to properly evaluate Plaintiff's
subjective complaints as required by the relevant Social
Security Rulings and regulations and by Tenth Circuit
authority. First, the ALJ's discussion of an alleged lack
of objective medical evidence to support Plaintiff's
complaints was not “‘closely and affirmatively
linked to substantial evidence'” in the record.
Haese, 2018 WL 1304840, at *3 (quoting Hardman
v. Barnhart, 362 F.3d 676, 679 (10th Cir. 2004)) (citing
SSR 96-7p, 1996 WL 374186 (July 2, 1996) at *4); see
also 20 C.F.R. §§ 404.1529(b)-(c),
416.929(b)-(c). Next, the ALJ's decision cited
Plaintiff's criminal history, but the discussion failed
to reflect why or how this history was relevant to
Plaintiff's credibility or residual functional capacity.
See Haese, 2018 WL 1304840, at *3. Third, the
ALJ's finding regarding Plaintiff's failure to make
lifestyle modifications failed to comport with Social
Security Ruling 02-1p and thus could not be used to support
an adverse credibility determination. See Id. at *4.
Finally, the ALJ discounted Plaintiff's credibility based
upon his lack of pursuit of medical treatment but improperly
failed to consider whether “Plaintiff's
explanations or other record evidence, ” including
evidence of lack of financial resources, provided
justification for the treatment Plaintiff sought and
received. See Id. (citing SSR 96-7p, 1996 WL 374186,
at *7, *8).
therefore was required based upon the ALJ's failure to
apply the correct legal standards, as well as a lack of
substantial evidence to uphold the credibility determination
(and thus a lack of substantial evidence to uphold the
assessment of residual functional capacity). See Id.
at *5. The Court declined to address other propositions of
error raised by Plaintiff. See Id. (citing
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 the denial of Plaintiff's applications for
benefits. See Def.'s Obj. at 4-7; 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.”). While thorough, the ALJ's assessment
of the evidence reflected legal errors and resulted in an
assessment that lacked substantial evidence and did not
comport with Tenth Circuit authority in multiple respects.
See Haese, 2018 WL 1304840, at *2-5. Defendant now
primarily repeats the arguments previously made in support of
affirmance and 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 4-7; see also Gutierrez, 953 F.2d at 584-86
(finding that district court abused its discretion in denying
fees to plaintiff where the ALJ's findings were
unreasonable based on the record before the ALJ). Defendant
thus 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), (d)(1)(B),
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 Id. §
2412(d)(1)(A). Thus, the only remaining issue is the
reasonableness of Plaintiff's fee request. See
Id. § 2412(d)(1)(A), (d)(1)(B), (d)(2)(A).
seeks an attorney's fee award of $6587.40, calculated as
• 3.7 attorney hours for work performed in 2016, at a
rate of $193.00 per hour; 26.1 attorney hours for work
performed in 2017, at a rate of $197.00 per hour; and 2.8
attorney hours for work ...