Kilinski v. Astrue

Filing 39

ORDER granting 34 Motion for Attorney Fees and 38 Motion to Supplement. Defendant is to remit $18,242 in attorneys fees, and the Notice of Appeals Council Decision Fully Favorable is accepted as filed. By Judge Christine M. Arguello on 10/30/12.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 09-cv-00716-CMA
DONALD P. KILINSKI, on behalf of
ROSEMARY A. KILINSKI (Deceased),
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner, Social Security Administration,
Defendant.

ORDER GRANTING MOTION FOR ATTORNEY’S FEES

This matter is before the Court on Plaintiff’s “Motion for Attorney Fees Pursuant
to the Equal Access to Justice Act [“EAJA”].”1 (Doc. # 34.) For the reasons discussed
below, the motion is granted.
I. BACKGROUND
The facts and procedural history of this case are set out at length in: the
Administrative Record (see Doc. # 6); this Court’s “Order Affirming Administrative Law
Judge’s Decision” (Doc. # 22); and the Tenth Circuit’s “Order and Judgment,” which
reversed this Court’s holding (Doc. # 29). After issuance of the Tenth Circuit’s mandate
(Doc. # 30), this Court remanded the case to Defendant, the Commissioner of Social

1

Rosemary A. Kilinski died in 2009, and her husband, Donald P. Kilinski was substituted as Plaintiff, pursuant to 42 U.S.C. § 404(d)(1). However, because Ms. Kilinski was
the claimant in the administrative proceedings, the Court refers to her here as “Plaintiff.”

Security (see Doc. # 31). Thereafter, Plaintiff filed the instant motion.2 (Doc. # 34.)
Plaintiff requests $18,242 in attorney’s fees pursuant to the EAJA, 28 U.S.C. § 2412.3
(See Docs. ## 34; 35; and 37.)
II. DISCUSSION
A.

WHETHER DEFENDANT’S POSITION WAS SUBSTANTIALLY JUSTIFIED
Under the EAJA, a party that prevails against the United States in court, including

a successful Social Security benefits claimant, may be awarded fees if the position of
the United States was not “substantially justified” and there are no special circumstances that make an award of fees unjust. 28 U.S.C. § 2412(d)(1)(A); Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002). As many cases indicate, where, as here, a Social
Security disability claimant obtains a remand to the Commissioner under 42 U.S.C.
§ 405(g), she is a prevailing party for purposes of the EAJA. See Shalala v. Schaefer,
509 U.S. 292, 302 (1993). Further, Defendant does not assert any special circumstances that would make an award of fees unjust.
The Commissioner bears the burden of demonstrating that his position was
substantially justified – a test that, in this Circuit, “means his position was reasonable
in law and in fact and thus can be justified to a degree that could satisfy a reasonable
person.” Harrold v. Astrue, 372 F. Appx. 903, 904 (10th Cir. 2010) (unpublished)
2

After Plaintiff’s motion was fully briefed, Defendant, through the Appeals Council,
issued a “Notice of Appeals Council Decision Fully Favorable” which, as the title of
the notice suggests, resulted in a decision fully favorable to Plaintiff. (Doc. # 38-1.)

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As discussed, infra, Plaintiff initially requested greater compensation but later reduced
the number of hours for which she seeks payment.
2

(internal quotation marks and citations omitted). “Both the Commissioner’s prelitigation
and litigation positions must have had reasonable bases in fact and law to be considered substantially justified.” Id.
In the instant case, a review of the Tenth Circuit’s “Order and Judgment”
illustrates why Defendant’s position was not substantially justified. (See Doc. # 29.)
The Tenth Circuit’s disposition of the case turns primarily on the assessment of
Plaintiff’s Residual Functional Capacity (“RFC”) performed by the Administrative Law
Judge (“ALJ”). As the Order and Judgment indicates, the ALJ’s RFC assessment was
not supported by substantial evidence with regard to Plaintiff’s left thumb pain and the
lack of a “manipulative functions” evaluation. (See Doc. # 29 at 6–8.) Further, the
Tenth Circuit held that Defendant’s position was beset with several legal errors.
For example:


Defendant improperly advanced post-hoc rationalizations to support the ALJ’s
decision, even though such reasons were not apparent from the ALJ’s decision.
(Id. at 6–7 (citing Carpenter v. Astrue, 537 F.3d 1264, 1267 (10th Cir. 2008)
(noting that post-hoc rationales are improper because they “usurp[] the agency’s
function of weighing and balancing the evidence in the first instance”).)



The ALJ’s error in evaluating Plaintiff’s thumb pain could not have been harmless
error, contrary to the arguments Defendant raised. (Id. at 7 (“if the ALJ had
recognized the objective medical evidence showing significant joint arthritis and
the physician’s notation of fairly significant tenderness and a prescription for a
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hand-based splint, he may have found credible [Plaintiff’s] testimony that she
could not use a keyboard for more than an hour a day”).)


The ALJ failed to explain his reasons for the RFC findings regarding Plaintiff’s
abilities to sit, walk, and push/pull, in contravention of the principle that
“administrative agencies must give reasons for their decisions.” (Id. at 8–9
(quoting Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995)).)



The ALJ erred in not evaluating the effects of fatigue and loss of exertional
strength on Plaintiff’s RFC. (Id. at 9 (citing Wilson v. Astrue, 602 F.3d 1136,
1140 (10th Cir. 2010) (ALJ must consider limiting effects of all impairments,
including those not found disabling at step two)).)



No findings were made by the ALJ on whether Plaintiff could sustain work-like
activities for eight hours a day, five days a week. (Id. at 10 (citing SSR 96-8p
(“Ordinarily, RFC is an assessment of an individual’s ability to do sustained
work-related physical and mental activities in a work setting on a regular and
continuing basis. A ‘regular and continuing basis’ means 8 hours a day, for
5 days a week, or an equivalent work schedule.”)).)



The ALJ failed to decide if Plaintiff could hold a job for a significant period of time
given her impairments. (Id. (citing Washington v. Shalala, 37 F.3d 1437, 1442
(10th Cir. 1994) (“A finding that a claimant is able to engage in substantial gainful
activity requires more than a simple determination that the claimant can find
employment and that [she] can physically perform certain jobs; it also requires
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a determination that the claimant can hold whatever job [she] finds for a
significant period of time.”)).)


The ALJ failed to compare Plaintiff’s prior work with her capabilities, despite the
precept that “an ALJ must determine the physical and mental demands of the
claimant’s past relevant work, followed by an assessment of whether the
claimant has the ability to meet the job demands notwithstanding her physical
and mental limitations.” (Id. at 12–13.)

These multiple errors convince the Court that Defendant’s position was not reasonable
in law and in fact and, thus, not substantially justified. See Harrold, 372 F. Appx. at 904.
Defendant’s arguments to the contrary are unavailing. To begin with, Defendant
argues that because this Court affirmed the ALJ’s decision it necessarily follows that
“reasonable persons not only could disagree as to the outcome, but in fact did disagree
as to the outcome.” (Doc. # 36 at 6.) However, as flattering as this argument may be, it
fails to convince the Court that the legal principles identified by the Tenth Circuit – which
were ignored or neglected by the ALJ – are so novel or complex that lack of adherence
to them can be deemed reasonable. Moreover, that this Court agreed with Defendant’s
arguments on the merits does not mean that Defendant’s position was substantially
justified. See Pierce v. Underwood, 487 U.S. 552, 565 (1988) (“the fact that one other
court agreed or disagreed with the Government does not establish whether its position
was substantially justified”). Nor is Defendant saved by pointing the Court to reasonable arguments it made in defense of the ALJ’s decision, since under the “EAJA fees
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generally should be awarded where the government’s underlying action was
unreasonable even if the government advanced a reasonable litigation position.”
Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th Cir. 2007) (internal quotation marks
and citation omitted).
Further, the Court declines Defendant’s invitation to, essentially, reverse the
Tenth Circuit sub silentio. Defendant asserts that, “[n]otwithstanding the Tenth Circuit’s
holding, the Commissioner is still of the believe [sic] that the ALJ did not commit
reversible error” (Doc. # 36 at 7) and that certain evidence, which did not persuade the
Tenth Circuit of Defendant’s position, “should be deemed substantial evidence” in favor
of the ALJ’s decision (id. at 10). The Tenth Circuit’s decision on the merits is binding
and authoritative; as such, Defendant’s beliefs to the contrary are immaterial.
Additionally, Defendant, through the Appeals Council, has acknowledged the Tenth
Circuit’s decision and has, accordingly, issued a decision fully favorable to Plaintiff.
(See Doc. # 38-1.) Further, as Defendant recognizes, the standard for determining
whether the Government’s position is substantially justified under the EAJA differs from
the substantial evidence standard required by the Social Security Act. (See Doc. # 36
at 2.) Thus, Defendant’s attempt to re-litigate the substantial evidence question is
unavailing. Accordingly, Defendant’s position was not substantially justified.
B.

REASONABLENESS OF THE FEE REQUEST
Having determined that Plaintiff is entitled to fees under the EAJA, the Court next

considers the reasonableness of her fee request. As previously indicated, Plaintiff
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seeks $18,242 in fees. (See Doc. ## 34; 35; and 37.) This amount is calculated as:
93.75 hours of attorney time at $177/hour and 17.35 hours of paralegal time at
$95/hour.4 (Id.)
Defendant does not dispute the hourly rates or the amount of paralegal time for
which Plaintiff seeks compensation. (See Doc. # 36 at 12–14.) Instead, Defendant
argues that “the number of attorney hours that counsel expended was not reasonable.”
(Id. at 12.) Specifically, Defendant takes issue with the 55.5 hours Plaintiff’s counsel
says she spent drafting the opening and reply briefs before the Tenth Circuit. (Id. at
13.) In reply, and “[i]n the exercise of caution,” Plaintiff reduced the “amount of hours
for preparing the Opening Brief before the Tenth Circuit by 10 hours.”5 (Doc. # 37
at 11.) Accordingly, the question before the Court is whether 38.55 hours was a
reasonable amount of time for counsel to have spent drafting the opening brief before
the Tenth Circuit.6 See, e.g., Brodeur v. Astrue, No. 09-cv-00045, 2010 WL 4038611,
at *4 (D. Colo. Oct. 14, 2010) (unpublished) (noting that the fees question hinges on
whether the hours spent representing the plaintiff were “reasonably expended”). Based
4

Plaintiff mistakenly lists the amount of attorney time as 90.75 hours in the conclusion
section of her reply. (See Doc. # 37 at 11.) However, as the math bears out, the correct
number is 93.75.
5

The 93.75 hours of attorney time referenced above reflects this reduction – and
includes 3.5 hours for preparing the reply to the instant motion. (See Doc. # 37 at 11.)

6

Of the 55.5 hours Defendant takes issue with, Plaintiff states that 48.55 of them
were spent drafting the opening brief. (Doc. # 37 at 8.) In light of the 10-hour reduction
mentioned in the text above, the relevant figure is 38.55 hours. Regarding the 6.95
hours needed for the reply brief on the merits, the Court finds such time reasonably
spent.
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on the history of this case, the Court determines that such an amount of time was
reasonable.
Plaintiff’s counsel represented her at the administrative hearing in this matter,
which took place in September 2004. Due to an extensive delay at the Appeals
Council, Plaintiff’s complaint was not filed in this Court until March 2009, and her
opening brief was not submitted to the Tenth Circuit until January 2011. In light of such
a span of time, the Court agrees with Plaintiff that her counsel “needed to review the
record carefully even though she had represented [Plaintiff] before the agency at
hearing . . . .” (Doc. # 37 at 9.) Further, the amount of time Plaintiff spent drafting the
opening brief before the Tenth Circuit appears reasonable when compared to the total
amount of time litigants often spend prosecuting a successful social security appeal
before the district court. See Brodeur, 2010 WL 4038611, at *4 (finding 46.09 hours
“well within the accepted range of hours required to prosecute a successful social
security appeal”); Calrson v. Astrue, 500 F. Supp. 2d 1174, 1177 (S.D. Iowa 2007)
(finding 53.25 hours reasonable); Lechner v. Barnhart, 330 F. Supp. 2d 1005, 1011
(E.D. Wis. 2004) (45.5 hours not excessive); Palmer v. Barnhart, 227 F. Supp. 2d 975,
978 (N.D. Ill. 2002) (finding reasonable 48.2 hours before district court). Although not a
perfect comparison, taking a case to the Tenth Circuit effectively amounts to a second
appeal and, accordingly, it seems reasonable to the Court for the amount of fees
generated before the Tenth Circuit to roughly reflect the amount of fees before the
district court. Such a determination appears particularly apt here, in light of the
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successful resolution to this long-standing case achieved by Plaintiff before the Tenth
Circuit. See, e.g., Palmer, 227 F. Supp. 2d at 978 (approving of 73.8 hours spent by
Social Security claimant on appeal before the Seventh Circuit, especially “given the fine
result achieved”).
III. CONCLUSION
For the foregoing reasons, it is ORDERED that Plaintiff’s “Motion for Attorney
Fees Pursuant to the Equal Access to Justice Act” (Doc. # 34) is GRANTED.
Accordingly, it is
FURTHER ORDERED that Defendant remit attorney’s fees in the amount of
$18,242, payable to substituted Plaintiff, Donald P. Kilinski, and mailed to counsel of
record. It is
FURTHER ORDERED that “Plaintiff’s Opposed Motion to Supplement Record”
(Doc. # 38) is GRANTED, and the record is hereby SUPPLEMENTED to include the
“Notice of Appeals Council Decision Fully Favorable” (Doc. # 38-1), which is accepted
as filed.
DATED: October

30

, 2012
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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