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Aguirre v. Saul

United States District Court, W.D. Oklahoma

November 15, 2019

JORGE AGUIRRE, Plaintiff,
v.
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant. [1]

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Plaintiff's Motion for Attorney's Fees Under the Equal Access to Justice Act (EAJA). (ECF No. 20). Specifically, Plaintiff seeks an award of fees in the amount of $7, 688.40. (ECF Nos. 20 & 21). Defendant objects to an award of fees in this amount, arguing: (1) his position was “substantially justified” and (2) the amount requested is unreasonable. (ECF No. 22).

         The Court rejects Defendant's arguments and GRANTS an award of fees to Plaintiff in the amount of $7, 688.40.

         I. ATTORNEY FEES AUTHORIZED UNDER EAJA

         EAJA entitles a prevailing party to recover reasonable attorney fees from the government “ ‘unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.' ” Al-Maleki v. Holder, 558 F.3d 1200, 1204 (10th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)). “The term ‘position' includes the government's position both in the underlying agency action and during any subsequent litigation.” Hadden v. Bowen, 851 F.2d 1266, 1268 (10th Cir. 1988); see 28 U.S.C. § 2412(d)(2)(D) (explaining that the “position of the United States” is “in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based.”). The test for “substantial justification” is one of “reasonableness in law and fact.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). The Commissioner's “position can be justified even though it is not correct, and ... it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988).

         “EAJA fees generally should be awarded where the government's underlying action was unreasonable even if the government advanced a reasonable litigation position.” Hackett, at 1174 (citation omitted). However, the Tenth Circuit recognizes an exception to this rule “when the government advances a reasonable litigation position that ‘cure[s] unreasonable agency action.' ” Evans v. Colvin, 640 Fed.Appx. 731, 733 (10th Cir. 2016) (alteration in original) (quoting Hackett, 475 F.3d at 1174); see, e.g., Johns v. Astrue, 455 Fed.Appx. 846, 847-48 (10th Cir. 2011) (affirming the district court's denial of EAJA fees upon district judge's finding that the Commissioner's harmless-error argument was substantially justified). The burden rests with the government to prove that its position was substantially justified. Kemp v. Bowen, 822 F.2d 966, 967 (10th Cir. 1987).

         II. PLAINTIFF IS THE PREVAILING PARTY

         Previously, the Court ordered: (1) reversal of the Commissioner's decision denying Plaintiff's applications for insurance benefits and (2) a remand for further administrative proceedings (ECF Nos. 18 & 19). The reversal was based on error in the ALJ's failure to properly evaluate Plaintiff's need for an assistive device. (ECF No. 18:4-14). With the reversal and remand, Mr. Aguirre is considered the “prevailing party” for purposes of EAJA. See Shalala v. Schaefer, 509 U.S. 292 (1993). Thus, the only issues are whether the government's position was “substantially justified” and whether any special circumstances exist which would prevent an award of benefits.

         III. PLAINTIFF IS ENTITLED TO AN AWARD OF BENEFITS

         Mr. Saul defends his position that the Commissioner's decision was “substantially justified, ” presenting three arguments, none of which have merit.

         First, Defendant states: “all of the medical opinions supported the ALJ's conclusion that Plaintiff did not require an assistive device outside of the limited period that he was recovering from surgery.” (ECF No. 22:4). This statement is inaccurate. As noted by the Court, Dr. Thakral prescribed a walker in April 2017 and in July 2017, he noted that Plaintiff “walked reasonably okay” with the use of a cane for support. See ECF No. 18:7-8. (emphasis added).

         In assessing the RFC, the ALJ noted the walker prescription, but made no comment regarding its impact on the RFC. See TR. 57. Defendant attempted to defend the omission by arguing:

• that Dr. Thakral only prescribed a walker after Plaintiff ...

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