King v. Astrue

Filing 26

ORDER denying 24 Plaintiff's Motion for Attorney Fees Under the EAJA, by Judge Lewis T. Babcock on 12/7/11.(gmssl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Lewis T. Babcock, Judge
Civil Action No. 10-cv-01530-LTB
NOEL KING,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This case is before me on Plaintiff’s Motion for Attorney Fees Under the Equal Access to
Justice Act (the “EAJA”), 28 U.S.C. Section 2412(d) [Doc #24]. For the reasons set forth below,
I deny the motion.
I. Standard of Review
The EAJA provides for an award of attorney fees to a prevailing party, other than the
United States, unless the Court finds that the position of the United States was substantially
justified or special circumstances make an award of fees unjust. 28 U.S.C. § 2412(d)(1)(A). The
substantial justification test is whether there is a “reasonable basis both in law and fact.” Pierce
v.Underwood, 487 U.S. 552, 565 (1988). “[A] 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.” Id. at 566 n.2. The Commissioner bears the burden of demonstrating that
its position was substantially justified. Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995).

II. Analysis
Plaintiff raised three issues on appeal. I affirmed the ALJ’s decision as to one of the
issues and reversed the decision as to the remaining two issues. Reversal was based on my
conclusions (1) that the ALJ’s finding that Plaintiff was capable of performing work requiring a
GED level of 2 was unsupported by substantial evidence in the record and resulted in a flawed
assessment of Plaintiff’s RFC and flawed hypothetical questioning of the vocational expert; and
(2) that the ALJ’s finding that Plaintiff was capable of working as parking lot attendant was
inconsistent with the Plaintiff’s RFC, a point which the Commissioner conceded. I further
concluded that remand was necessary to address the flaws in the assessment of Plaintiff’s RFC
and the hypothetical questions asked of the vocational expert and to re-assess whether there are
significant jobs in the national economy that Plaintiff is capable of performing.
Notwithstanding my conclusion that the ALJ erred in finding that Plaintiff was capable of
performing work with a GED level of 2, I am satisfied that the Commissioner was substantially
justified in taking the position that this error, if any, was harmless in light of the ALJ’s finding
that Plaintiff is limited to unskilled work which by definition requires little or no judgment. It
follows that the Commissioner was substantially justified in arguing that the ALJ correctly
concluded that there were substantial jobs in the national economy that Plaintiff was capable of
performing based on two jobs other than parking lot attendant that were identified by the
vocational expert.

2

Because the Commissioner’s defense of Plaintiff’s appeal of the denial of his claim for
benefits was substantially justified, Plaintiff’s Motion for Attorney Fees Under the EAJA, 28
U.S.C. Section 2412(d) [Doc #24] is DENIED.

Dated: December

7 , 2011 in Denver, Colorado.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, JUDGE

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