Worley v. Saul

          ORDER

          CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.

         On June 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.

         I. Attorney Fee Awards Under the EAJA

         Section 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).

         II. Discussion

         A. Whether Plaintiff Is the Prevailing Party

         As 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).

         B. Whether the Government's Position Was Substantially Justified

         In the 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)).

         Defendant 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).

         C. Plaintiff's Requested Hourly Rate

         An 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.

         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, 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.

         The 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, Plaintiff's ...