Gauna v. Astrue

Filing 23

ORDER granting 19 Plaintiff's Motion for Award of Attorney's Fees. Plaintiff is awarded $5,861.13 in attorney fees pursuant to the Equal Access to Justice Act, by Judge Lewis T. Babcock on 6/9/2014. (eseam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE

Civil Case No. 11-cv-02781-LTB
LARRY GAUNA
Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
This matter is before me on Plaintiff’s Motion for An Award of Attorney’s Fees Under
The Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Doc #19) filed by Plaintiff Larry
Gauna following my order reversing and remanding the Social Security Administration (“SSA”)
Commissioner’s final decision denying his applications for disability benefits. After reviewing
the Parties’ briefing on the matter, I grant Plaintiff’s EAJA application.
In this case, Plaintiff appealed the Commissioner’s decision denying Plaintiff’s
application Disability Insurance Benefits (“DIB”), filed pursuant to Title II of the Social Security
Act (the “SSA”), 42 U.S.C. §§ 401-433. I found that the ALJ committed legal error in
concluding that Plaintiff was capable of light work without having undertaken the function-byfunction analysis required by the Commissioner’s own interpretation of the applicable
regulations. I therefore reversed the disability determination and remanded to the Commissioner
for further proceedings.

Plaintiff now seeks attorney fees pursuant to the EAJA, which provides, in relevant part:
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 . . . including
proceedings for judicial review of agency action, brought by or against the United
States in any court having jurisdiction of that action, unless the court finds that
the position of the United States was substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). As interpreted by the Supreme Court, “substantially justified” means
“‘justified in substance or in the main’– that is, justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101
L.Ed.2d 490 (1988). Stated differently, the test is whether there is a “reasonable basis in both
law and fact” for the Commissioner’s position. Id., 108 S.Ct. at 2550; Gilbert v. Shalala, 45
F.3d 1391, 1394 (10th Cir. 1995), cert. denied 116 S.Ct. 49 (1995). Although the term
“‘substantially justified’ means, of course, more than merely undeserving of sanctions for
frivolousness,” Pierce, 108 S.Ct. at 2550, “a position can be justified even though it is not
correct, and we believe 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,” id. at 2550 n.2.
For this reason, a finding that the Commissioner’s position was not supported by substantial
evidence does not necessarily lead to a finding that the Commissioner’s position was not
substantially justified. Hadden v. Bowen, 851 F.2d 1266, 1268-69 (10th Cir. 1988).
The Commissioner bears the burden of demonstrating that her position was substantially
justified. Gilbert, 45 F.3d at 1394. I have discretion in determining whether this standard has
been met. Pierce, 108 S.Ct. at 2548-49; Stephenson v. Shalala, 846 F.Supp. 49, 50 (D. Kan.
1994). In exercising that discretion, I must consider the case “as an inclusive whole, rather than

2

as atomized line items.” Comm’r, Immigration and Naturalization Serv. v. Jean, 496 U.S. 154,
162, 110 S.Ct. 2316, 2320, 110 L.Ed.2d 134 (1990). “Being incorrect on one point does not
translate into lacking substantial justification for one’s litigation position during the entirety of a
civil action.” Jackson v. Chater, 94 F.3d 274, 279-80 (7th Cir. 1996).
Although the Commissioner sets forth these legal precepts in her brief, she nevertheless
fails to carry her burden to demonstrate that her position “during the entirety of the civil action”
was substantially justified. Rather, she has done little more than simply reiterated her arguments
which were found to be legally and factually insufficient initially. The Commissioner’s position
cannot have been reasonable in light of the clear language of her own policy guidelines. The
Commissioner, as discussed in my order, failed to comply with the language and directives when
determining Plaintiff’s residual functional capacity (“RFC”). The ALJ’s opinion did not contain
sufficient detail to allow the conclusion that Plaintiff had the RFC for all the physical demands
of light work. See Ray v. Colvin, 2014 WL 811674 at *3 (D. Colo. Mar. 3, 2014). The
Commissioner therefore has failed to meet her burden of proof on the issue of substantial
justification. Accordingly, Plaintiff is entitled to an award of attorney fees.
Plaintiff requests attorney fees in the amount of $5,861.13 for 31.3 hours of work on this
litigation. The Commissioner presents no argument that the enhanced hourly rate requested by
Plaintiff’s counsel is excessive or that the total amount of time expended or the total amount of
fees requested are unreasonable. Moreover, my own experience suggests that the hours
expended are reasonable and the fees requested comparable to awards made under the EAJA in
similar cases. See Comm’r v. Jean, 496 U.S. at 154 (holding that fees awarded under EAJA may
include the fees incurred in litigating the fee dispute itself); Brodeur v. Astrue, 2010 WL
3

4038611, at *1 (D.Colo. Oct. 14, 2010) (awarding Plaintiff’s entire fee request, including fees
based on time spent in connection with Plaintiff’s Reply to Defendant’s Objection to Motion for
EAJA Fees).
I therefore find and conclude that Plaintiff is entitled to the entirety of his requested fees.
However, I agree with the Commissioner that the check must be made out to Plaintiff, not
Plaintiff’s counsel. See 28 U.S.C. § 2412(d)(1)(A) (“[A] court shall award to a prevailing party .
. . fees and other expenses . . . in any civil action . . . brought by or against the United States”
(emphasis added)); Astrue v. Ratliff, 130 S.Ct. 2521, 2529-30 (2010) (Sotomayor, J., concurring)
(“I agree that the text of the Equal Access to Justice Act (EAJA) and our precedents compel the
conclusion that an attorney’s fee award under 28 U.S.C. § 2412(d) is payable to the prevailing
litigant rather than the attorney.” (emphasis added)); Brown v. Astrue, 271 F. App’x 741, 743
(10th Cir. 2008) (unpublished) (discussing Manning v. Astrue, 510 F.3d 1246 (10th Cir. 2007));
see also 31 U.S.C. § 3727.
Accordingly, it is ORDERED as follows:
1.

Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 [Doc. # 19], filed April 23, 2013, is GRANTED;
and

4

2.

Plaintiff is AWARDED $5,861.13 in attorney fees pursuant to the Equal Access
to Justice Act, 28 U.S.C. § 2412(d)(1)(A). The check for fees shall be made out
to Plaintiff and sent to Plaintiff’s counsel’s office.

Dated: June

9 , 2014, in Denver, Colorado.
BY THE COURT:

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

5