United States District Court, W.D. Oklahoma
CHELSEA D. RILEY, Plaintiff,
ANDREW SAUL,  Commissioner of Social Security, Defendant.
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE.
March 21, 2019, 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. 23); see also Riley v. Berryhill, No.
CIV-17-985-G, 2019 WL 1299377 (W.D. Okla. Mar. 21, 2019).
Plaintiff Chelsea D. Riley now moves for an award of
attorney's fees in the amount of $6336.80 pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§§ 2412 et seq. See Pl.'s Mot. (Doc.
No. 24). Defendant has objected to the Motion (Doc. No. 25)
and Plaintiff has replied (Doc. No. 26).
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
application for supplemental security income under the Social
Security Act, 42 U.S.C. §§ 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 at step three
by failing to properly evaluate whether Plaintiff met the
criteria of Listing 12.05C for intellectual disability.
See Riley, 2019 WL 1299377, at *3-4 (citing 20
C.F.R. pt. 404, subpart P app. 1, § 12.05 (2016)).
Specifically, the ALJ found that the
“‘“paragraph C” criteria' of that
Listing ‘are not met because [Plaintiff] does not have
a valid verbal, performance, or full scale IQ of 60 through
70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of
function.'” Id. at *3.
Court found that the ALJ erred by failing to discuss the
first Listing 12.05C criterion-the capsule definition-and
that the Court was not permitted to supply the missing
analysis. See Id. at *3-4. The Court further noted
that the ALJ erred in finding that Plaintiff did not have a
valid IQ score of 60 through 70 and that evidence reflected
that Plaintiff met this and the other remaining criterion of
the Listing. See Id. at *4. The Court rejected
Defendant's argument that the ALJ's failure could be
excused as harmless. See Id. (“Defendant has
pointed to no confirmed or unchallenged findings made
elsewhere in the ALJ's decision that
conclusively negate the possibility that Plaintiff
can meet Listing 12.05C.” (alteration and internal
quotation marks omitted)). Because “[t]he medical
evidence undisputedly show[ed] that Plaintiff met the
IQ-score and the other-severe-impairment criteria, ”
and “[t]he Court could not find that Plaintiff fail[ed]
to meet” the capsule-definition criterion
“without engaging in impermissible speculation and
factfinding, ” reversal was required. Id. at
objects to any award of fees, essentially arguing that
“this case is exceptional because the
Commissioner's litigation position ‘cured
unreasonable agency action.'” Groberg v.
Astrue, 505 Fed.Appx. 763, 768 (10th Cir. 2012)
(alteration omitted) (quoting Hackett, 475 F.3d at
1174); see Vincent v. Berryhill, 247 F.Supp.3d 1228,
1232 (W.D. Okla. 2017); see also Gutierrez v.
Sullivan, 953 F.2d 579, 585 (10th Cir. 1992) (noting
that the court can consider the reasonableness of the
position the government takes both in the administrative
proceedings and in the civil action the claimant commenced to
obtain benefits). Defendant correctly notes that the
Commissioner's position may be found to be substantially
justified-and thus the Commissioner may avoid paying EAJA
fees under this exception-“when the Commissioner
“reasonably (even if unsuccessfully) argues in
litigation that the ALJ's errors were harmless.”
Def.'s Resp. at 3 (quoting Evans v. Colvin, 640
Fed.Appx. 731, 733 (10th Cir. 2016)). Here, however,
Defendant's one-sentence harmless-error argument appeared
in a footnote, was not specific to the ALJ's step-three
error, and failed to address the authorities rejecting the
proposition that the Court could dismiss a
capsule-definition-related error as harmless. See
Def.'s Br. (Doc. No. 17) at 27 n.4; Riley, 2019
WL 1299377, at *4.
Response then repeats 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
Resp. at 4-5; 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).
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 ...