Babnik v. Astrue

Filing 23

ORDER. ORDERED that plaintiffs Motion for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 [Docket No. 20] is DENIED by Judge Philip A. Brimmer on 03/05/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00155-PAB
DANIEL J. BABNIK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on the Motion for Award of Attorney’s Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 [Docket No. 20] f iled by
plaintiff Daniel Babnik. In the motion, plaintiff, as the prevailing party, requests
attorney’s fees in the amount of $7,704.12 pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. The motion is fully briefed and ripe for disposition.
The EAJA provides for an award of attorney’s fees to a prevailing party in a civil
action brought against the United States unless the court finds that the position of the
United States was substantially justified. 28 U.S.C. § 2412(d)(1)(A). The burden of
establishing that the government’s position was substantially justified rests with the
government. Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988). “Subs tantially
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 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 EAJA also has a built-in mechanism
to disallow fees where “special circumstances make an award unjust” and gives courts
discretion to deny awards where equitable considerations dictate an award should not
be made. Scarborough v. Principi, 541 U.S. 401, 423 (2004).
On January 20, 2012, plaintiff filed a Complaint [Docket No. 1] seeking review of
the final decision of defendant Carolyn W. Colvin in her official capacity as the
Commissioner of Social Security (the “Commissioner”) denying plaintiff’s claim for
disability benefits and supplemental security income benefits under Title II and Title XVI
of the Social Security Act, 42 U.S.C. §§ 401-33. The Court reversed and remanded the
Commissioner’s decision because the ALJ erred in substituting his own medical
judgment for the opinions of plaintiff’s physicians, opinions which indicated that plaintiff
had manipulative limitations. Docket No. 16 at 10. The Court also found that the ALJ
failed to account for his finding that plaintiff suffers from severe depression in assessing
plaintiff’s RFC, but concluded that the exclusion of such limitations was harmless error.
Id. at 14-15.
The Commissioner opposes plaintiff’s motion on the grounds that her position
was substantially justified. Docket No. 21 at 2. The Commissioner argues that the ALJ
validly discounted medical opinions concerning plaintiff’s manipulative limitations
because (1) the ALJ found that the relevant portion of Dr. Shauna Grace’s suggested
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manipulation limitations were contradicted by evidence that plaintiff had only slightly
decreased upper extremity strength, good grip strength, and only a slight decrease in
plaintiff’s range of motion in his arms and (2) the ALJ found Dr. Anthony LoGalbo’s
suggested manipulation limitations were unsupported by any observations of
manipulative deficits or range of motion loss, id. at 3, (citing R. at 28-29). The
Commissioner argues that the ALJ’s decision permissibly discounts these medical
opinions for lack of support and consistency with the record, factors which the ALJ was
required to consider in evaluating medical opinion evidence. Id. (citing 20 C.F.R.
§ 404.1527(c)(3)-(4)).
The Court agrees with the Commissioner. The ALJ rejected Dr. Grace’s opinion
on manipulative limitations as “excessive, in light of his normal gait, the lack of any
spinal or hand pathology, his slightly decreased upper extremity strength and good grip
strength, and only slightly decreased range of motion in the arms.” R. at 29. The ALJ
further rejected Dr. LoGalbo’s opinion on manipulative limitations as “unsupported by
any observations of gross or fine manipulative deficits or significant range of motion
loss.” Id. The Commissioner’s attempt in this litigation to justify this aspect of the ALJ’s
decision was reasonable in law and in fact. See Docket No. 13 at 20 (“the ALJ
reasonably discounted both opinions on grounds that they were not well-supported and
were inconsistent with the record as a whole”). Thus, although the ALJ ultimately erred
by impermissibly “rel[ying] on his own interpretation of the medical data in declining to
credit either Dr. Grace or Dr. LoGalbo’s opinions regarding plaintiff’s manipulative
ability,” Docket No. 16 at 9, the Commissioner’s position that valid reasons existed for
rejecting the physicians’ manipulative limitations is substantially justified.
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The Commissioner next argues that her position was substantially justified with
respect to plaintiff’s mental limitations because the Court found the ALJ’s error to be
harmless. Docket No. 21 at 4. Plaintiff responds that, regardless of any harmless
error, the remand of this case establishes that an unjustifiable agency action forced
litigation. Docket No. 22 at 4. “The general rule is that EAJA fees ‘should be awarded
where the government’s underlying action was unreasonable even if the government
advanced a reasonable litigation position.” George v. Astrue, 510 F. App’x 756, 757
(10th Cir. 2013) (unpublished) (quoting Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th
Cir. 2007)); see also Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990) (“the EAJA
. . . favors treating a case as an inclusive whole, rather than as atomized line-items”).
The Commissioner cannot cure unreasonable agency conduct “by taking a reasonable
position in any subsequent civil litigation before a district court.” Hackett, 475 F.3d at
1173. Nonetheless, the Tenth Circuit, in an unpublished decision, has ruled that the
Commissioner’s position can be substantially justified when the Commissioner argues
that the ALJ considered an impairment, albeit improperly, and argues that the ALJ
ultimately reached “the conclusion required by the evidence.” See Johns v. Astrue, 455
F. App’x 846, 848 (10th Cir. 2011) (unpublished). Here, although the ALJ did not
include cognitive limitations in his hypothetical question to the VE, the ALJ cited
additional limitations suggested by plaintiff’s attorney and addressed by the VE as an
alternative basis for his decision. R. at 31. Thus, when the Commissioner argued
before this Court that the ALJ’s failure to include cognitive limitations was harmless
error, the Commissioner was not attempting to provide a post-hoc justification of the

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ALJ’s decision or justify its position with an “entirely new legal theor[y].” Cf. Hackett,
475 F.3d at 1175. Rather, the Commissioner’s position in the underlying action and in
this litigation was based upon the affirmative alternative findings regarding plaintiff’s
potential cognitive limitations. See Docket No. 13 at 21. This aspect of the
Commissioner’s position is therefore substantially justified. See Murdock v. Colvin, 516
F. App’x 703, 704 (10th Cir. 2013) (unpublished) (declining to disturb district court’s
finding that the Commissioner’s harmless error argument was “substantially justified
given the evidence in the case”).
For the foregoing reasons, the Court finds that the Commissioner’s position in
the underlying agency action and this litigation was substantially justified. It is
therefore,
ORDERED that plaintiff’s Motion for Award of Attorney’s Fees Pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412 [Docket No. 20] is DENIED.

DATED March 5, 2015.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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