Longgrear v. Astrue

Filing 30

ORDER granting Plaintiff's 27 Motion for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412. By Judge Robert E. Blackburn on 6/25/2014.(klyon, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 13-cv-00238-REB
AMALIA Q. LONGGREAR,
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 [#27],1 filed May 28,
2014. I grant the motion.
In this case, plaintiff appealed the Commissioner’s decision denying plaintiff’s
application for disability insurance benefits. I found that the ALJ committed legal error in
failing to order a consultative examination to support her conclusion regarding plaintiff’s
mental residual functional capacity. I therefore reversed the disability determination and
remanded to the Commissioner for further proceedings.
Plaintiff now seeks attorney fees pursuant to the Equal Access to Justice Act
(“EAJA”), which provides, in relevant part:
1

“[#27]” 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.

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).
The Commissioner bears the burden of demonstrating that her position was
substantially justified. Gilbert, 45 F.3d at 1394. I have discretion in determining

2

The parties apparently or implicitly 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).

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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. Instead, she merely rehashes the
arguments this court previously found unavailing. The law is well established that an
ALJ may not substitute her own lay opinion for medical evidence in assessing plaintiff’s
residual functional capacity. The ALJ’s opinion in contravention of that principle
certainly cannot be described as reasonable. 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.
Plaintiff requests attorney fees in the amount of $5,177.75 representing 27.8
hours devoted to this litigation.3 The Commissioner presents no argument that the total
amount of time expended or the total amount of fees requested are unreasonable.

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Plaintiff’s request includes a request for an increase in the statutory rate to $186.25 per hour as
a cost-of-living adjustment(“COLA”). “Except in unusual circumstances, a COLA should be freely given to
plaintiffs applying for attorneys' fees under EAJA.” Greenhill v. United States,. 96 Fed. Cl. 771, 783
(Fed. Cl. 2001). 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).

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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 [#27], filed May 28, 2014, is GRANTED; and
2. That under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A),
plaintiff is AWARDED attorney fees of $5,177.75.
Dated June 25, 2014, at Denver, Colorado.
BY THE COURT:

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