United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.
20, 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. 25, 26. Now before the
Court is Plaintiff Michael Worley'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. 27) and Pl.'s Br. (Doc. No. 28). Defendant has
responded. See Doc. No. 29.
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 and
supplemental security 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 in various ways with respect
to his consideration of evidence and medical opinions
regarding Plaintiff's neuropathy and its functionally
limiting effects, resulting in a residual functional capacity
determination that was not supported by substantial evidence.
Worley v. Comm'r of Soc. Sec., No. CIV-18-713-G,
2019 WL 2553298, at *2-3 (W.D. Okla. May 1, 2019) (R. &
R.), adopted, 2019 WL 2552223 (June 20, 2019). The
Court found that reversal was required on this basis and
declined to address other propositions of error raised by
Plaintiff. See Id. at *3 (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 on substantial justification grounds.”); 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 to
$202.00 per hour for services performed in 2018 and $204.00
per hour for services performed in 2019. Defendant does not
challenge the hourly attorney fees requested by Plaintiff.
See Def.'s Resp. at 1.
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, that $202.00 is a
reasonable hourly rate for attorney work performed in 2018,
and that $204 is a reasonable hourly rate for attorney work
performed in 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. (Aug. 14, 2019) (Doc. No. 28-1). Plaintiff
therefore is entitled to an upward adjustment of the
statutory rate consistent with the evidence provided.
Court notes, however, that Plaintiff seeks fees for 22.55
attorney hours billed in 2018 but his billing statement
reflects only 21.05 attorney hours billed in that year.
See Pl.'s Mot. Ex. 1, at 1-2. Accordingly,