United States District Court, W.D. Oklahoma
MEMORANDUM OPINION AND ORDER
T. ERWIN, UNITED STATES MAGISTRATE JUDGE.
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).
Court rejects Defendant's arguments and
GRANTS an award of fees to Plaintiff in the
amount of $7, 688.40.
ATTORNEY FEES AUTHORIZED UNDER 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).
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).
PLAINTIFF IS THE PREVAILING PARTY
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.
PLAINTIFF IS ENTITLED TO AN AWARD OF BENEFITS
Saul defends his position that the Commissioner's
decision was “substantially justified, ”
presenting three arguments, none of which have merit.
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).
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
• that Dr. Thakral only prescribed a walker after