United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.
March 14, 2019, the Court entered an Order and a Judgment
reversing the decision of the Social Security Administration
(“SSA”) and remanding this case for further
proceedings. See Doc. Nos. 24, 25. Now before the
Court is Plaintiff Dawn Mitchell's Motion for
Attorney's Fees under the Equal Access to Justice Act, 28
U.S.C. §§ 2412 et seq. See Pl.'s Mot.
(Doc. No. 26) and Pl.'s Br. (Doc. No. 27). Defendant has
responded. See 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); 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 under the
Social Security Act, 42 U.S.C. §§ 401-434. 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's Position Was Substantially
administrative proceedings below, the administrative law
judge (“ALJ”) erred by failing to properly
evaluate multiple medical opinions, “resulting in the
improper omission of certain restrictions from the [residual
functional capacity] assessment.” Mitchell v.
Berryhill, No. CIV-17-889-G, 2019 WL 1199859, at *2
(W.D. Okla. Mar. 14, 2019). Specifically, the ALJ failed to
properly consider two treating-physician opinions as to
physical restrictions and failed to properly consider a
state-agency examining psychologist's opinion as to
mental restrictions. See Id. at *3-4. The Court
found that reversal was required on these bases and declined
to address other propositions of error raised by Plaintiff.
See Id. at *4 (citing Watkins v. Barnhart,
350 F.3d 1297, 1299 (10th Cir. 2003)).
does not argue, and thus has not shown, that the United
States' position before the SSA and this Court was
substantially justified. See Def.'s Resp. at 1
(“[T]he Commissioner does not object to Plaintiff's
request based on substantial justification.”); 28
U.S.C. § 2412(d)(1)(A), (d)(1)(B), (d)(2)(D).
Plaintiff's Requested Hourly Rate
attorney's fee award under the EAJA is limited to $125.00
per hour unless the court determines that an increase in the
cost of living or special factor justifies a higher fee.
See 28 U.S.C. § 2412(d)(2)(A). Plaintiff has
requested an upward adjustment of this statutory rate, and
Defendant does not challenge the hourly attorney fees
requested by Plaintiff. See Def.'s Br. at 1. The
Court takes judicial notice of the fact that SSA's Office
of General Counsel (“OGC”) in Denver has agreed
as a matter of policy that $197.00 is a reasonable hourly
rate for attorney work performed in 2017, and $202.00 is a
reasonable hourly rate for attorney work performed in 2018
and 2019, on Social Security cases in the Western District of
Oklahoma. See Pl.'s Br. Ex. 1, Mem. from Denver
OGC Office Regarding Soc. Sec. Litig. in Okla. & N.M.
(Feb. 21, 2019) (Doc. No. 27-1). Plaintiff therefore is
entitled to an upward adjustment of the statutory rate
consistent with the evidence provided.
also may recover “paralegal fees from the Government at
prevailing market rates.” Richlin Sec. Serv. Co. v.
Chertoff, 553 U.S. 571, 590 (2008). Plaintiff requests
an hourly rate of $110.00 for paralegal work performed in
2017, 2018, and 2019. See Pl.'s Mot. Ex. 1 (Doc.
No. 26-1) at 3. Defendant does not object to this proposed
hourly rate, and the Court finds that it is consistent with
the prevailing market rates in the Western District of
Oklahoma for this time period. See Vincent v.
Berryhill, 247 F.Supp.3d 1228, 1233 (W.D. Okla. 2017);
Prince v. Berryhill, No. CIV-15-933-G, 2018 WL
1249908, at *3 (W.D. Okla. Mar. 9, 2018).
Whether Plaintiff's Fee ...