Sutherland v. Astrue
Filing
26
ORDER granting 23 Motion for Attorney Fees. ORDERED that plaintiff Adam Sutherland is awarded $4,535.91 in attorney's fees, by Judge Philip A. Brimmer on 2/3/2015.(agarc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 12-cv-01890-PAB
ADAM K. SUTHERLAND,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter comes before the Court on plaintiff Adam Sullivan’s motion for
attorney’s fees [Docket No. 23] brought pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), which defendant Carolyn W. Colvin (the
“Commissioner”) opposes. [Docket No. 24]. 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 fees are assessed against the United States
when its actions were not ‘substantially justified.’”) (citing 28 U.S.C. § 2412(d)(1)(A)).
The relevant facts are set forth in detail in the Court’s order reversing and remanding
the decision of the Commissioner, Docket No. 21, and will not be recited here.
I. ANALYSIS
“[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)) (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). The
standard is satisfied if there is a “genuine dispute.” Id. (citing Advisory Committee’s
Notes on 1970 Amendments to Fed. R. Civ. P. 37(a)(4)). “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). 1
Here, the Court reversed and remanded the Commissioner’s decision that
plaintiff was not disabled because (1) of the twelve pieces of evidence cited by the ALJ
to support his determination that plaintiff’s drug use was a material factor contributing to
his disability, only one, the opinion of Dr. Suyeishi, constituted acceptable “‘medical
evidence regarding plaintiff’s mental health impairments when he is abusing alcohol’ or
drugs,” Docket No. 21 at 17-18 (citing Vigil v. Astrue, No. 11-cv-0255-WJM, 2012 WL
2523037 at *4 (D. Colo. June 29, 2012)); (2) the ALJ did not state a leg itimate reason
for according the opinion of plaintiff’s treating physician, Dr. Kalousek, less than
1
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”).
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controlling weight, (3) the ALJ did not apply the relevant factors listed in 20 C.F.R.
§ 404.1527(c)(2), (4) the ALJ did not apply the proper standard in deciding to rely on
the opinion of Dr. Suyeishi over that of Dr. Kalousek, and (5) the ALJ did not take into
account that the opinion of Dr. Suyeishi, unlike that of Dr. Kalousek, was developed
prior to plaintiff’s 2010 hospitalization.
Defendant argues that the Court’s decision was “primarily concerned with the
ALJ’s level of articulation with regard to [his] findings.” Docket No. 24 at 5. The Court
disagrees with defendant’s characterization of its order. The Court held that all of the
ALJ’s evidentiary support for his finding was improperly considered. Eleven of the
twelve pieces of evidence the ALJ relied on to support his finding that plaintiff’s drug
use materially contributed to his disability were not proper medical evidence. As to the
remaining piece of evidence, Dr. Suyeishi’s medical opinion, the Court held that the ALJ
did not apply the proper standard in deciding to rely on that opinion over the opinion of
plaintiff’s treating physician. Docket No. 21 at 18. The ALJ gave Dr. Kalousek’s opinion
only moderate weight because the ALJ concluded, without citing any evidence, that Dr.
Kalousek was “not fully familiar with [plaintiff’s] substance use history.” R. at 23.
In support of her position, defendant argues that standards for an ALJ’s
articulation are “flexible,” and that her position was substantially justified “in light of the
ALJ’s articulation of various regulatory factors in evaluating the medical evidence and
evidence of plaintiff’s substance use.” Docket No. 24 at 5-6. But the Court did not
simply find fault with the ALJ’s articulation. Rather, as discussed above, the Court
found that the ALJ reached his finding based on consideration of improper evidence
and wrongly disregarded the evidence of plaintiff’s treating physician. Defendant has
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therefore not carried her burden of showing that her position that the ALJ’s decision
was supported by substantial evidence was substantially justified.
Plaintiff requests an award of $4,535.91 in attorney’s fees accrued through the
litigation of the instant motion, constituting 20.5 hours of work in the second half of
2012 at a rate of $184.66 per hour, 3.25 hours of work in the first half of 2013 at a rate
of $187.09 per hour, and 0.75 hours of work in 2014 at a rate of $189.78 per hour. The
Commissioner does not dispute the amount requested. See Docket No. 24.
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 EAJA provides: “The amount of fees awarded under this subsection shall
be based upon prevailing market rates for the kind and quality of the services furnished,
except that . . . (ii) attorney fees shall not be awarded in excess of $125 per hour unless
the court determines that an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the proceedings involved, justifies a
higher fee.” 28 U.S.C. § 2412(d)(2)(A). “The Court has significant discretion to
determine the appropriate hourly rate for an award of fees under the EAJA.” MorenoGutierrez v. Napolitano, No. 10-cv-00605-WJM-MEH, 2013 WL 3233574 at *7 (D. Colo.
June 26, 2013) (citing Headlee v. Bowen, 869 F.2d 548, 551 (10th Cir. 1989)). Courts
in this district routinely grant cost of living adjustments to attorneys’ fees petitions under
the EAJA. See id. (finding that “an hourly rate of $180 per hour takes into account both
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Plaintiff’s counsel’s expertise in the immigration field and the increase in the cost of
living”); see also Hanson Colo. Farms P’ship v. Vilsack, No. 11-cv-00675-RPM, 2012
WL 4336174 at *4 (D. Colo. Sept. 21, 2012) (where defendants did not dispute
plaintiff’s cost of living adjustment, “it may be assumed that $184.23 is an appropriate
hourly rate under the EAJA”); Cross v. Colvin, No. 12-cv-03310-REB, 2014 WL
5002094 at *2 n.5 (D. Colo. Oct. 6, 2014) (“Except in unusual circumstances, a COLA
should be freely given to plaintiffs applying for attorneys’ fees under EAJA”) (citing
Greenhill v. United States, 96 Fed. Cl. 771, 783 (Fed. Cl. 2011)). As def endants do not
dispute plaintiff’s cost of living adjustment, the Court finds a rate of $187.09 for the first
half of 2013 and $189.78 for 2014 to be reasonable. The Court finds that the hours
claimed are also reasonable. In addition, the Court notes that plaintif f’s attorneys
undertook a substantial risk of loss in connection with the case, devoted considerable
time and effort in presenting plaintiff’s position, and obtained a favorable result for
plaintiff.
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 $4,535.91
is reasonable.
II. CONCLUSION
Accordingly, it is
ORDERED that plaintiff Adam K. Sutherland’s Petition for Fees Under 28 U.S.C.
§ 2412 [Docket No. 23] is GRANTED. It is further
ORDERED that plaintiff Adam Sutherland is awarded $4,535.91 in attorney’s
fees.
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DATED February 3, 2015.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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