Preston v. Astrue

Filing 23

ORDER granting 19 Plaintiff's Motion for Attorney Fees Under EAJA (The EqualAccess to Justice Act, 28 U.S.C. § 2412). By Judge Lewis T. Babcock on 6/24/2014.(klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
LEWIS T. BABCOCK, JUDGE
Civil Case No. 11-cv-002946-LTB
THOMAS W. PRESTON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
______________________________________________________________________________
ORDER
______________________________________________________________________________
_
This matter is before me on Plaintiff’s Motion for Attorney Fees Under EAJA (The Equal
Access to Justice Act, 28 U.S.C. § 2412) [Doc #19] filed by Plaintiff, Thomas W. Preston,
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 motion for EAJA fees.
I. BACKGROUND
Plaintiff sought judicial review of the SSA Commissioner’s final decision denying his
application for disability insurance benefits, filed pursuant to Title II of the Social Security Act,
42 U.S.C. §§ 401-433, and his application for supplemental security income, filed pursuant to
Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383c. After consideration of the
parties’ arguments and the administrative record, I entered an order on February 20, 2013, in
which I reversed and remanded the SSA Commissioner’s final decision. [Doc #17] In that order
I concluded that the Administrative Law Judge’s (“ALJ”) assessment/legal analysis of the

medical opinion evidence was insufficient and, as such, I found that the ALJ erred in assessing
Plaintiff’s residual functional capacity (“RFC”) related to his mental impairment liimitations. As
a result, I reversed the Commissioner*s final decision and remanded the matter for additional
proceedings. Judgment subsequently entered on February 21, 2013. [Doc #18]
II. LAW
Plaintiff now seeks attorney fees pursuant to the EAJA. The EAJA provides for an award
of attorney fees to a prevailing party, other than the United States, in a civil action brought by or
against the United States, unless the court finds that the position of the United States was
substantially justified or special circumstances make an award unjust. See 28 U.S.C. §
2412(d)(1)(A). The substantial justification test is one of reasonableness in law and fact; a
position is substantially justified if it is “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, 101 L.Ed.2d 490 (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 FN2.
“Whether or not the position of the United States was substantially justified shall be
determined on the basis of the record (including the record with respect to the action or failure to
act by the agency upon which the civil action is based) which is made in the civil action for
which fees and other expenses are sought.” 28 U.S.C. §2412(d)(1)(B); see also Gilbert v.
Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995). The Commissioner bears the burden of
demonstrating that her position was substantially justified. Id. I have discretion in determining
whether this standard has been met. Pierce v. Underwood, supra, 487 U.S. at 561-62; see also

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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 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).
III. UNDERLYING RULINGS
The ALJ determined that Plaintiff was not disabled, which became the SSA
Commissioner’s final decision, on the basis that he had the RFC to perform other work existing
in significant numbers in the national economy at Step Five of the sequential evaluation process
for assessing disability claims. See 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert,
482 U.S. 137, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). In so doing, the ALJ assessed Plaintiff’s
RFC as the ability to perform medium physical work, except that he was limited by his mental
impairments “to have less than occasional dealings with the general public and minimal
supervision.”
On review of this decision, Plaintiff challenged the ALJ’s analysis of the medical opinion
evidence regarding the effect his mental impairments have on his ability to work on several
grounds. I ruled that the ALJ’s order failed to demonstrate reliance on the correct legal
standards when evaluating the opinions of Dr. Neufeld (as an examining clinical psychologist)
and Dr. Wanstrath (as a non-examining expert) in the processing of assessing Plaintiff’s ability
to interact in the workplace. Specifically, I agreed with Plaintiff that the ALJ’s finding that Dr.
Wanstrath’s opinions were “consistent with Dr. Neufeld’s” – when he adopted Dr. Wanstrath’s
opinion as to Plaintiff’s ability to interact with others – was not supported by the evidence of
record. In so doing, I found that the record revealed that Dr. Wanstrath’s opinion was that

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Plaintiff only had moderate limitations in the ability to get along with co-workers and to interact
with the general public with no more than minimal contact with others. Such opinion was not
consistent, despite the ALJ’s ruling to the contrary, with Dr. Neufeld’s opinion that Plaintiff’s
social interaction with orders and his ability to work at many jobs would be “markedly impaired”
by his schizoid personality features.
The Commissioner had argued that I should defer to the ALJ’s finding that Dr. Neufeld’s
and Dr. Wanstrath’s opinions were consistent, on the rationale that although the ALJ’s order
expressly gave “substantial weight” to Dr. Neufeld’s opinions, it obviously did not adopt his
opinion related to Plaintiff’s social functioning, but instead adopted the opinion of Dr.
Wanstrath. In response, I concluded that the ALJ could have rejected the specific
findings/opinions of Dr. Neufeld, but his order did not indicate as such. Rather, the order stated
that the ALJ gave Dr. Neufeld’s opinion “substantial weight” but then, apparently, he relied
upon the opinions of Dr. Wanstrath, related to Plaintiff’s social functioning, on the basis that his
opinion was “consistent with Dr. Neufeld’s analysis.” [AR 20] Thus, I concluded that the ALJ’s
order lacked sufficient legal analysis, and I reversed and remanded for additional proceedings.
IV. ANALYSIS
The parties agree that the question at issue here is whether the SSA Commissioner’s
litigation position on appeal was substantially justified, to a degree that could satisfy a
reasonable person, barring an award of EAJA attorney fees to Plaintiff. 28 U.S.C. §
2412(d)(1)(A).
In support of her contention that her litigation position was substantially justified, the
Commissioner argues that it was reasonable to defend the ALJ’s evaluation and adoption of the

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opinions provided by Dr. Wanstrath and Dr. Neufeld. She argues that although the ALJ gave
“substantial” weight to Dr. Neufeld’s opinion, and he accepted most of Dr. Neufeld’s opinions
on Plaintiff’s functioning (such as that Plaintiff did not experience any significant cognitive
limitations and could understand instructions) the ALJ did not adopt all of Dr. Neufeld’s
opinions because he adopted Dr. Wanstrath’s opinion that Plaintiff’s social limitations were no
more than moderate. The Commissioner asserted that I should defer to the ALJ’s determination
that the opinions of the two doctors were consistent. The Commissioner now contends that there
was at least a “genuine dispute” as to whether the ALJ’s decision should have been affirmed – in
that the Commissioner relied on at least an “arguable definable administrative record” – and, as
such, its position was substantially justified.
I disagree. While the ALJ could have chosen to discount Dr. Neufeld’s opinion
regarding Plaintiff’s ability to socially interact with others, the order did not specify as such.
Rather, it indicated that it gave substantial weight to Dr. Neufeld’s opinions, but then adopted
the opinion of Dr. Wanstrath (a non-examining expert) related to Plaintiff’s limitations in
socially interaction without further explanation. As to the specific limitation, it is clear that the
opinions are not consistent, and the ALJ’s conclusion that they are is not supported by the
record. I found that the analysis was legally insufficient, and the Commissioner did not provide
me with any persuasive argument to the contrary either on appeal or in the briefing here. Thus, I
conclude that the Commissioner has not met her burden to establish that her litigation position in
this matter was sufficiently reasonable to avoid an EAJA attorney fees award in favor of
Plaintiff. See generally Pierce v. Underwood, supra, 487 U.S. at 566.
Plaintiff requests attorney fees in the amount of $9,660.00 representing 55.2 hours of

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work, at $175.00 per hour. The Commissioner presents no argument that the 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 are comparable to awards made under the
EAJA in similar cases. See generally Guana v. Astrue, 2013 WL 31602 (D.Colo., Jan. 28,
2013)(unpublished).
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); Astrue v. Ratliff, 560 U.S. 586, 589, 130
S.Ct. 2521, 177 L.Ed.2d 91 (2010); 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. § 3716(c)(3)(B); Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.1986).

ACCORDINGLY, it is ORDERED that Plaintiff’s Motion for Award of Attorney Fees
Under EAJA [Doc. #19] is GRANTED, and Plaintiff is AWARDED $ 9,660.00 in attorney fees
pursuant to 28 U.S.C. § 2412(d)(1)(A). I FURTHER ORDER that the check for attorney fees
shall be made out to Plaintiff and sent to Plaintiff’s counsel’s office.

Dated: June

24 , 2014 in Denver, Colorado.

BY THE COURT:

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