Silver v. Astrue

Filing 28

ORDER granting in part 25 Motion for Attorney Fees. ORDERED that plaintiff Paula Silver is awarded $5120.87 in attorneys' fees by Judge Philip A. Brimmer on 02/04/15.(jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-00771-PAB
PAULA R. SILVER,
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. 25] f iled by
plaintiff Paula Silver. In the motion, plaintiff, as the prevailing party, requests attorney’s
fees in the amount of $5,209.63 pursuant to the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412. Docket No. 27 at 9. 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 March 27, 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
supplemental security income under Title XVI of the Social Security Act, 42 U.S.C.
§§ 401-33. The Court remanded the case, concluding that the ALJ erred (1) in
explaining the weight she assigned to the opinion of Dr. K. Terry, a state agency
reviewing physician, (2) failing to address the supportability of Dr. Terry’s opinion, and
(3) failing to address the fact that, when forming her opinion, Dr. Terry did not have
access to potentially relevant medical records. Docket No. 21 at 8-10.
The Commissioner opposes plaintiff’s motion on the grounds that her position
was substantially justified. Docket No. 26 at 3. The Commissioner does not dispute
that the ALJ stated of Dr. Terry’s opinion only that it was “much more consistent with
the evidence as a whole” than the opinion of examining physician Dr. Velma Campbell
and therefore gave Dr. Terry’s opinion “great weight.” R. at 25. Rather, the
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Commissioner argues that the reasons the ALJ provided for rejecting Dr. Campbell’s
opinion explain, by implication, the ALJ’s reasons for assigning great weight to Dr.
Terry’s opinion. Docket No. 26 at 3. The Court has already considered and rejected
this argument, concluding that “[a]lthough the comparison of the two opinions implicitly
suggests that Dr. Terry’s opinion does not suffer the same flaws as Dr. Campbell’s
opinion, the Court cannot attempt to reconstruct the ALJ’s reasoning.” Docket No. 21 at
8 (citing Allen v. Barnhart, 357 F.3d 1140, 1142 (10th Cir. 2004) (holding that reviewing
court cannot provide post hoc justification for the ALJ’s decision)). The Commissioner
cites Best-Willie v. Colvin, 514 F. App’x 728 (10th Cir. 2013) (unpublished), in support
of her argument that Dr. Terry’s opinion was implicitly much more consistent with the
record as a whole. The Tenth Circuit in Best-Willie considered whether the ALJ had
provided a sufficient explanation for declining to give a treating physician’s opinion
controlling weight. Id. at 732-33. The court concluded that, “[a]lthough there was not a
contemporaneous discussion of [contradictory] evidence in discounting Dr. Hall’s
opinion, in reading the ALJ’s decision as a whole, it is evident Dr. Hall’s opinion is
inconsistent with the record.” Id. at 733. The Best-Willie decision rested on specific
facts, which the Commissioner makes little attempt to argue were present in the instant
case, and does not purport to alter the general rule that the failure of the ALJ to set
forth the reasons why a particular weight was assigned to treating sources and other
medical sources constitutes reversible error. See 20 C.F.R. § 416.927; Reyes v.
Bowen, 845 F.2d 242, 245 (10th Cir. 1988). Moreover, the Commissioner fails to
address the other errors identified in the ALJ’s consideration of Dr. Terry’s opinion,

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namely, the failure to address the fact that Dr. Terry’s opinion was a check-box form
with limited notations and the failure to discuss medical evidence that became available
after Dr. Terry rendered the subject opinion. See Frey v. Bowen, 816 F.2d 508, 515
(10th Cir. 1987) (noting that check-box forms, unaccompanied by written reports or
testimony, do not constitute substantial evidence). The Commissioner makes no
attempt to justify these aspects of the ALJ’s decision. Thus, the Court cannot conclude
that the Commissioner has provided a sufficient basis upon which to conclude that her
position, both at the agency level and in this litigation, was substantially justified. See
Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990) (“the EAJA . . . f avors treating a
case as an inclusive whole, rather than as atomized line-items”). The Court will award
plaintiff reasonable attorneys’ fees.
Plaintiff seeks an award for 29.35 hours expended by her attorneys, Michael
Seckar and Michael Desaulniers, at an hourly rate of $177.50. Docket No. 25 at 1;
Docket No. 27 at 9. The Commissioner does not argue that the requested fee award is
unreasonable or should otherwise be reduced.
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 will subtract 0.5 hours from plaintiff’s requested award for time
plaintiff’s counsel spent reviewing simple, one-line court documents, which is
unnecessary, and for time spent e-filing briefs, which is a clerical task not compensable

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at the attorneys’ hourly rate. See id. at 434; Missouri v. Jenkins by Agyei, 491 U.S.
274, 288 n.10 (1989) (noting that purely clerical or secretarial tasks should not be billed
at paralegal rate). The Court is otherwise satisfied that the hours claimed are
reasonable, including those hours spent litigating the instant motion for attorneys’ fees
under the EAJA. See Jean, 496 U.S. at 166 (“Congress intended the EAJA to cover
the cost of all phases of successful civil litigation addressed by the statute.”). Mr.
Seckar has extensive experience litigating Social Security benefits cases in this district
and Mr. Desaulniers indicates that he has represented Social Security disability
claimants for nine years. Docket No. 25 at 9. The Court is satisfied that the claimed
hourly rate is reasonable under the circumstances and consistent with hourly rates
awarded under the EAJA in this district. See, e.g., LaRue v. Colvin, No. 12-cv-00636PAB, 2014 WL 4333704, at *3 (D. Colo. Aug. 29, 2014) (awarding EAJA fees at hourly
rate of $183.12).
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 award of $5120.87 is
reasonable.
Accordingly, it is
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. 25] is GRANTED in part. It
is further
ORDERED that plaintiff Paula Silver is awarded $5120.87 in attorneys’ fees. It is
further

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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 attorneys. If there is such a debt, any fee remaining after
offset will be payable to plaintiff and delivered to plaintiff’s attorneys.

DATED February 4, 2015.
BY THE COURT:

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

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