McCaffrey v. Astrue
ORDER granting 22 Motion for Attorney Fees Under the EAJA, by Judge Philip A. Brimmer on 1/28/2015.(agarc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-01943-PAB
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
This matter comes before the Court on plaintiff Carol McCaffrey’s motion for
attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d) [Docket No. 22]. Defendant Carolyn W. Colvin (the “Commissioner”)
opposes an award of fees under the EAJA [Docket No. 23]. The Commissioner
believes she was “substantially justified” in litigating this appeal. Cf. Wrenn ex rel.
Wrenn v. Astrue, 525 F.3d 931, 934 (10th Cir. 2008) (“EAJA f ees are assessed against
the United States when its actions were not ‘substantially justified.’”) (citing 28 U.S.C.
§ 2412(d)(1)(A) (2006)).
“[A] claimant may seek to defray the cost of appealing from an agency decision
to a court under the . . . [EAJA] fee shifting statute.” Wrenn, 525 F.3d at 934. Under
the EAJA, “‘a court shall award to a prevailing party other than the United States fees
and other expenses . . . incurred by that party in any civil action . . ., brought by or
against the United States . . ., unless the court f inds that the position of the United
States was substantially justified.” Manning v. Astrue, 510 F.3d 1246, 1249 (10th Cir.
2007) (quoting 28 U.S.C. § 2412(d)(1)(A) (2006) (omissions in original) (emphasis
omitted)). “Substantially justified” means “justified to a degree that could satisfy a
reasonable person” or, stated otherwise, that the government had a “reasonable basis
both in law and fact” for its position. Pierce v. Underwood, 487 U.S. 552, 565 (1988).
“Under the EAJA, the government bears the burden of showing that its position was
substantially justified.” Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988). T he
Court is to consider both the government’s position in the underlying agency action and
its position during any subsequent litigation. Hadden, 851 F.2d at 1267; see 28 U.S.C.
§ 2412(d)(2)(D) (stating that “‘position of the United States’ means, 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 Court reversed and remanded the Commissioner’s decision because the
ALJ’s RFC assessment was not based upon substantial evidence. Docket No. 18 at
23. Specifically, the ALJ failed to consider plaintiff’s severe and nonsevere impairments
in making his RFC findings. Docket No. 18 at 22. The consultative report of Dr. Lipson
noted that plaintiff had a major depressive disorder with a Global Assessment
Functioning (“GAF”) score of 65, but described the condition as well controlled and
creating only a mild level of impairment. R. at 325. Dr. Lipson concluded that plaintif f
had no appreciable mental limitations and would have only mild deficits in
understanding or remembering both simple and complex instructions. Id. Based on Dr.
Lipson’s findings, and the fact that plaintiff’s previous loss of employment was not
related to any mental infirmity, the ALJ, at step two, determined that plaintiff did not
suffer from a severe mental impairment and, at step four, found that plaintiff was
capable of performing her past work during the relevant period. Id.
However, the ALJ failed to make any findings concerning what, if any, workrelated limitations resulted from plaintiff’s nonsevere depressive disorder, did not
include any such limitations in his RFC finding, and, as a result, potential mental
limitations were not presented in the ALJ’s hypothetical question to the vocational
expert (“VE”). Docket No. 18 at 21. Based upon the ALJ’s hy pothetical question, the
VE concluded that plaintiff could return to her previous job of sales manager – a job
which requires a Specific Vocational Preparation (“SVP”) of eight, the ability to apply
deductive reasoning, problem solving, memorization of information, and coordinating
work activity between members of a work group. Id. at 23. The Court concluded that
the ALJ erred in failing to address whether an individual with mild mental impairments
could perform previous work requiring SVP-8. Id. The Court also found that the
hypothetical question posed to the VE was similarly lacking and did not provide an
adequate comparison of how plaintiff’s capabilities during the relevant period affected
her ability to perform her previous work. Id. at 23-24.
The Commissioner admits that the ALJ erred in failing to include or discuss
plaintiff’s nonsevere mental impairments in the RFC assessment or in hypothetical
questions posed to the VE. Docket No. 23 at 5. T he Commissioner argues that,
“[b]ased on the VE’s cross-examination testimony, it would be reasonable to conclude
that the ALJ’s failure to include Plaintiff’s nonsevere mental limitations in the RFC
determination, or in the hypothetical to the VE, did not prejudice Plaintif f.” Id. In
response, plaintiff argues that the Commissioner’s admission constitutes a concession
that the ALJ’s position during the agency proceeding was not substantially justified.
Docket No. 24 at 3. Plaintiff also argues that the VE’s testimony is insufficient to
substantially justify the Commissioner’s position during this litigation. Id. at 3-4.
An ALJ must “consider the limiting effects of all . . . impairment(s), even those
that are not severe, in determining [the RFC].” 20 C.F.R. § 404.1545(e). “W hile a ‘not
severe’ impairment(s) standing alone may not significantly limit an individual’s ability to
do basic work activities, it may–when considered with limitations or restrictions due to
other impairments–be critical to the outcome of a claim.” SSR 96-8p, 1996 WL 374184,
at *5 (July 2, 1996). The ALJ relied on Dr. Lipson’s opinion, which indicated that
plaintiff would have mild deficits in understanding and remembering complex and
simple instructions. R. at 230. Although the ALJ did not include such limitations in his
hypothetical questions to the VE, plaintiff’s counsel asked the VE whether someone
with limitations on her ability to understand and remember instructions could perform
plaintiff’s previous work. R. at 445. The VE responded “I think there’s so much
variance from employer to employer, I, I’m really not comfortable answering that
question.” Id. Plaintiff’s counsel then asked if someone with a mild limitation, such as a
level two on a scale of one through five, in the ability to understand and remember
simple and complex instructions would be able to perform the jobs of consumer
complaint clerk and sales manager and the VE responded, “there would be little to no
impact,” even when the required SVP was between five and eight. Id. The VE also
testified that, when working an SVP-8 job, the employee is expected to be on task
during the entire time they are functioning in the job. R. at 446. The Commissioner
admits that the ALJ erred in failing to include all of plaintiff’s impairments in his RFC
finding and in hypothetical questions posed to the VE and the VE’s testim ony does not
substantially justify such an error because the VE’s testimony does not conclusively
indicate whether the VE considered plaintiff’s severe impairments in combination with
her nonsevere impairments. See Docket No. 18 at 24; Wilson v. Astrue, 602 F.3d
1136, 1140 (10th Cir. 2010). Thus, the Commissioner has failed to meet her burden of
showing that her position during the agency proceedings had a “reasonable basis both
in law and in fact.” See Underwood, 487 U.S. at 565.
The Commissioner also fails to show that her position in this litigation was
substantially justified. The Commissioner appears to argue that, based upon the VE’s
testimony, she had a good faith basis to argue that the ALJ’s error was harmless.
Docket No. 23 at 5. The Commissioner did not, however, knowledge the ALJ’s error or
assert a harmless error argument in her response brief. Rather, the Commissioner
argued that the ALJ posed a hypothetical question “that included all the limitations the
ALJ ultimately included” in his RFC assessment and that the “ALJ could rely on the
VE’s testimony to find that Plaintiff could perform her past relevant work.” Docket No.
15 at 19 (internal quotation marks omitted). Thus, the Court cannot conclude that the
Commissioner’s position in this litigation was substantially justified. As noted above,
the VE’s testimony is, by itself, insufficient to conclude that the ALJ’s error was
harmless, see Docket No. 18 at 24, and a failure to consider both severe and
nonsevere impairments in an RFC finding requires remand. See Evans v. Chater, 55
F.3d 530, 532 (10th Cir. 1995); Confere v. Astrue, 235 F. App’x 701, 703-04 (10th Cir.
2007) (remanding because the ALJ’s RFC reflected some of the limitations but not
others and the hypothetical did not include all of the limitations) (citing Haga v. Astrue,
482 F.3d 1205, 1208 (10th Cir. 2007)). The Commissioner fails to substantially justify
her position during the agency proceedings and during this litigation; thus, the Court will
award plaintiff reasonable attorney’s fees.
Plaintiff requests an award for 20.8 hours expended by her attorney, Ann J.
Atkinson, at an hourly rate of $180.23. Docket No. 22 at 4. Plaintiff also requests an
additional two hours for time Ms. Atkinson spent preparing her reply brief. Docket No.
24 at 4.
To determine a reasonable fee request, a court must begin by calculating the
“lodestar amount.” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
The lodestar amount is the “number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). The Court finds that the hours claimed are reasonable, including those hours
spent litigating the instant motion for attorney’s fees under the EAJA. See Comm’r,
I.N.S. v. Jean, 496 U.S. 154, 166 (1990) (“Congress intended the EAJA to cover the
cost of all phases of successful civil litigation addressed by the statute.”). The parties
have stipulated to Ms. Atkinson’s hourly rate, Docket No. 22 at 4 n.2, and the Court
otherwise finds Ms. Atkinson’s claimed hourly rate reasonable for an attorney of similar
qualifications and experience. In light of the hours worked and the fact that the
Commissioner does not dispute the amount of fees requested, the Court concludes that
an attorney's fee of $4,109.24 is reasonable.
Pursuant to plaintiff’s assignment of any EAJA fees to her attorney, Docket No.
22-1 at 1, plaintiff requests that the fee award be made payable to Ms. Atkinson.
Docket No. 22 at 5. Plaintiff cites no legal authority in support of her position. An EAJA
attorney fee award is payable only to plaintiff, not to plaintiff’s attorney. See Manning v.
Astrue, 510 F.3d 1246, 1251 (10th Cir. 2007). “T he private contractual agreement
between [plaintiff] and [her] counsel is a collateral matter, which the district court [is] not
required to address when considering the EAJA fees motion.” See Hall v. Astrue, 272
F. App’x 701, 702 (10th Cir. 2008) (unpublished) (affirming payment of fee award to
plaintiff despite plaintiff’s assignment of fee award to counsel); accord Knight v. Astrue,
No. 08-cv-02498-CMA, 2011 WL 4382541, at *4 (D. Colo. Sep. 19, 2011). T he Court
will not order that plaintiff’s fee award be made payable to Ms. Atkinson.
Accordingly, it is
ORDERED that Plaintiff’s Application for an Award of Attorney’s Fees Under the
Equal Access to Justice Act, 28 U.S.C. § 2412 [Docket No. 22] is GRANTED. It is
ORDERED that the EAJA attorney fee award shall be made payable to plaintiff
and mailed to plaintiff’s attorney. It is further
ORDERED that, if it is determined upon effectuation of this Order that plaintiff
does not owe a debt that is subject to offset under the Treasury Offset Program, and
the Commissioner agrees to accept the assignment, the fee awarded herein shall be
made payable to plaintiff’s attorney. If there is such a debt, any fee remaining after
offset will be payable to plaintiff and delivered to plaintiff’s attorney.
DATED January 28, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?