Woodrow v. Astrue
Filing
23
ORDER DENYING MOTION FOR AWARD OF ATTORNEY FEES: The Motion 20 is DENIED. by Chief Judge Marcia S. Krieger on 6/2/14.(msksec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 12-cv-03356-MSK
DEBORAH M. WOODROW,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration,
Defendant.
ORDER DENYING MOTION FOR AWARD OF ATTORNEY FEES
THIS MATTER comes before the Court on Plaintiff Deborah M. Woodrow’s Motion
for Award of Attorneys’ Fees (“Motion”) (#20) pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. Having considered the Motion, the Commissioner’s Response
(#21), and Ms. Woodrow’s Reply (#22), the Court
FINDS and CONCLUDES:
I.
Jurisdiction
For purposes of determining the instant motion, the Court exercises subject matter
jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 2412.
I.
Issue Presented
Ms. Woodrow asserts that, pursuant to the EAJA, she should be awarded attorney fees in
the amount of $4,972.88 for her appeal of the administrative law judge’s Decision denying her
claim for disability insurance benefits. The Commissioner challenges Ms. Woodrow’s request
for attorney fees on the basis that its position in defending the Decision was substantially
justified.
II.
Background
Ms. Woodrow filed a claim for disability insurance benefits pursuant to Title II of the
Social Security Act, 42 U.S.C. §§ 401-33, asserting that her disability began on
September 4, 2007. After a hearing, the administrative law judge (“ALJ”) denied Ms.
Woodrow’s Claim in a Decision issued September 22, 2011.
Ms. Woodrow appealed that Decision to the Appeals Council. Along with her appeal,
Ms. Woodrow submitted additional evidence, including, as relevant here, a functional evaluation
report from a treating physician, Dr. Reitzenstein. The Appeals Council denied review, stating
that it “considered the reasons [Ms. Woodrow] disagree[d] with the decision and the additional
evidence listed on the enclosed Order of Appeals Council,” which included Dr. Reitzenstein’s
report, but concluded “that this information does not provide a basis for changing the [ALJ’s]
decision.” The Appeals Council did not provide any further analysis of Dr. Reizenstein’s
opinion.
Subsequently, Ms. Woodrow appealed to this Court. Pursuant to 42 U.S.C.§ 405(g), this
Court exercised its jurisdiction and reviewed the ALJ’s Decision. On January 28, 2014, this
Court reversed that Decision and remanded the case to the Commissioner for further
proceedings. Specifically, this Court held that the Appeals Council erred in not specifically
considering Dr. Reitzenstein’s opinion in its order denying review of the Decision. In the instant
Motion, Ms. Woodrow requests attorney fees.
III.
Discussion
The EAJA provides that “a court shall award to a prevailing party other than the United
States fees and other expenses . . . 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). Thus, to prevail under the EAJA, a party must show: (1) that it was the
prevailing party; (2) the position of the United States was not substantially justified; and (3) there
are no special circumstances that make an award unjust.
In a social security case, a claimant is the prevailing party when the district court remands
to the Commissioner of Social Security under 42 U.S.C. § 405(g). Hackett v. Barnhart, 475 F.3d
1166, 1168 (10th Cir. 2007). In an Order dated January 28, 2014, (#16) this Court reversed the
Commissioner’s decision denying Ms. Woodrow’s disability benefits and remanded his case to
the Commissioner for additional review. Thus, Ms. Woodrow is the prevailing party. The
Commissioner has not argued that there are any special circumstances that make an award
unjust. Therefore, the sole issue before the Court is whether the Commissioner’s position was
substantially justified.
The Commissioner bears the burden of demonstrating that her position was substantially
justified. Id. at 1170. For purposes of this litigation, the Commissioner’s position is both the
position it took in the underlying administrative proceeding and in subsequent litigation
defending that position. Id. at 1174. Under the EAJA, “fees generally should be awarded where
the [Commissioner’s] underlying action was unreasonable even if the [Commissioner] advanced
a reasonable litigation position.” Id. (quoting United States v. Marolf, 277 F.3d 1156, 1159 (10th
Cir. 2002)). The Commissioner’s position is substantially justified if it had a reasonable basis in
both law and fact. Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995); Veltman v. Astrue,
261 F. App’x. 83, 85 (10th Cir. 2008). The Commissioner’s position is not justified if it is
considered unreasonable “as a whole.” Hackett, 475 F.3d at 1175. Applying these standards
here, the Commissioner’s position on appeal had a reasonable basis in law and fact.
If a Claimant submits “new and material evidence”:
. . . the Appeals Council shall consider the additional evidence only where
it relates to the period on or before the date of the administrative law judge
hearing decision. The Appeals Council shall evaluate the entire record
including the new and material evidence submitted if it relates to the
period on or before the date of the administrative law judge hearing
decision. It will then review the case if it finds that the administrative law
judge's action, findings, or conclusion is contrary to the weight of the
evidence currently of record.
20 C.F.R. § 404.970(b). However, the degree to which the Appeals Council must consider
newly submitted records from treating physician remains unsettled. Compare Martinez v.
Barnhart, 444 F.3d 1201, 1207-08 (10th Cir. 2006), with Harper v. Astrue, 428 F. App'x 823,
826 (10th Cir. 2011) (unpublished).
On the one hand, the Tenth Circuit concluded in Martinez that the Appeals Council did
not need to “specifically discuss [a doctor’s] treatment records.” Id. There, the claimant
submitted new treatment records to the Appeals Council, which stated that it “considered the
contentions submitted in connection with the request for review as well as the additional
evidence,” but concluded that “neither the contentions nor the additional evidence provide[d] a
basis for changing the [ALJ’s] decision.” 444 F.3d at 1207.1 According to the Martinez court,
the Appeals Council satisfied the regulation’s requirement because it “adequately ‘considered . . .
the additional evidence,’ meaning that it ‘evaluate[d] the entire record including the new and
material evidence submitted.’” Id. (quoting 20 C.F.R. § 404.970(b)) (internal citations omitted).
1
Thus, Martinez differs from earlier cases cited by Ms. Woodrow where “there [was] no dispute
that the evidence escaped the attention of the Appeals Council.” Chambers v. Barnhart, 389
F.3d 1139, 1142-43 (10th Cir. 2004) (citing Lawson v. Chater, 83 F.3d 432 (10th Cir. 1996)).
On the other hand, the Tenth Circuit has more recently reversed the Commissioner’s
denial of benefits where the Appeals Council “did not conduct any treating physician analysis in
its decision denying [the claimant’s] request for review.” Harper, 428 F. App'x at 826. The
Harper court concluded that the Appeals Council had not adequately considered the new
treatment records even though, much like in Martinez, the Appeals Council “stated the new
evidence . . . ‘does not provide a basis for changing the [ALJ’s] decision.’” Id.
Here, as in Martinez and Harper, the Appeals Council stated that it “considered the
reasons [Ms. Woodrow] disagree[d] with the decision and the additional evidence listed on the
enclosed Order of Appeals Council,” but concluded “that this information does not provide a
basis for changing the [ALJ’s] decision.” Although the Court found Harper the more persuasive
authority in the merits case, it cannot conclude that the Commissioner adopted an unreasonable
position by relying on Martinez. Harper is a more recent case, but it is also unpublished and
does not specifically address or overrule Martinez. Thus, Martinez remains good law and the
Commissioner reasonably relied on its standard in defending the action of the Appeals Council.
Thus, the Commissioner has met her burden of demonstrating that her position in defending the
Decision on appeal was substantially justified, and Ms. Woodrow is not entitled to attorney fees.
For the reasons stated herein, IT IS ORDERED that the Motion is DENIED.
Dated this 1st day of June, 2014.
BY THE COURT:
Marcia S. Krieger
Chief United States District Judge
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