Ray v. Astrue

Filing 25

ORDER granting 22 Plaintiff's Motion for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412. Plaintiff is AWARDED $5,680.63 in attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). By Judge Robert E. Blackburn on 5/16/2014.(klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn

Civil Action No. 12-cv-02850-REB
DENNIS G. RAY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEY’S
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412
Blackburn, J.
The matter before me is plaintiff’s Motion for Award of Attorneys’ Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 [#22],1 filed May 8,
2014. I grant the motion.
In this case, plaintiff appealed the Commissioner’s decision denying plaintiff’s
application for supplemental security income benefits. I found that the ALJ committed
legal error in concluding that plaintiff was capable of light work without having
undertaken the function-by-function 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.

1

“[#22]” is an example of the convention I use to identify the docket number assigned to a
specific paper by the court’s case management and electronic case filing system (CM/ECF). I use this
convention throughout this order.

Plaintiff now seeks attorney fees pursuant to the Equal Access to Justice Act
(“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).2 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.), 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).

2

The parties apparently stipulate that plaintiff is a prevailing party for purposes of the EAJA. See
Shalala v. Schaefer, 509 U.S. 292, 302, 113 S.Ct. 2625, 2632, 125 L.Ed.2d 239 (1993) (party who
secures remand to Commissioner under sentence four of 42 U.S.C. § 405(g) is a prevailing party).

2

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 as atomized line items.”
Commissioner, Immigration and Naturalization Service 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. Nor does the opinion of the
consultative examiner support a finding of substantial justification, since as I noted in my
decision, that opinion did not contain sufficient detail to allow the ALJ to conclude that
plaintiff had the residual functional capacity for all the physical demands of light work.
See Ray v. Colvin, 2014 WL 811674 at *3 (D. Colo. March 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.

3

Plaintiff requests attorney fees in the amount of $5,680.63 for 30.5 hours of work
on this litigation.3 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. I therefore find and
conclude that plaintiff is entitled to the entirety of his requested fees.
THEREFORE, IT IS ORDERED as follows:
1. That plaintiff’s Motion for Award of Attorneys’ Fees Pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 [#22], filed May 8, 2014, is GRANTED; and
2. That plaintiff is AWARDED $5,680.63 in attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A).

3

Plaintiff’s request includes a request for an increase in the statutory rate to $186.25 per hour as
a cost-of-living adjustment. (See Affidavit ¶ 7 at 7-8 [#22], filed May 8, 2014.)
Except in unusual circumstances, a COLA should be freely given to
plaintiffs applying for attorneys' fees under EAJA. By providing in the
statute for a COLA, Congress intended that such an adjustment be
seriously considered in EAJA applications. In view of the fact that the
purpose of EAJA is to remove financial barriers to challenging wrongful
government action, it would undermine the purpose of the statute to deny
plaintiff's request for a COLA.
Greenhill v. United States,. 96 Fed. Cl. 771, 783 (Fed. Cl. 2001) (internal citations omitted). See also
Baker v. Bowen, 839 F.2d 1075, 1084 (5th Cir. 1988); see also Payne v. Sullivan, 977 F.2d 900, 903 &
n.2 (4th Cir. 1992). In the absence of any objection to plaintiff’s request for an increase in the hourly rate or
his calculation of the applicable rate, I do not consider whether his requested rate is appropriately
calculated under the applicable formula. See Greenhill, 96 Fed. Cl. at 784.

4

Dated May 16, 2014, at Denver, Colorado.
BY THE COURT:

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