Howard v. Colvin

Filing 29

ORDER GRANTING PLAINTIFF'S APPLICATION FOR AWARD OF ATTORNEY'S FEES: The 25 Motion for Attorney Fees is GRANTED. Payment of Mr. Howard's attorney fees in the amount of $7,482.09 shall be made to Mr. Howard directly, in care of his attorney. by Chief Judge Marcia S. Krieger on 4/10/15.(msksec, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 13-cv-00944-MSK
JAMES A. HOWARD,
Plaintiff,
v.
CAROLYN COLVIN, acting Commissioner of Social Security,
Defendant.

ORDER GRANTING PLAINTIFF’S APPLICATION FOR AWARD OF ATTORNEY’S
FEES

THIS MATTER comes before the Court on Plaintiff James A. Howards’ Motion for an
Award of Attorney’s Fees (“Motion”) (#25) pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, the supporting brief, (#26), the Commissioner’s Response (#27),
and Mr. Howards’s Reply (#28).
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.
ISSUE PRESENTED
Mr. Howard asserts that, pursuant to the EAJA, he should be awarded attorney fees in the
amount of $7482.09. The Commissioner objects, contending that its position in defending the
Decision was substantially justified and special circumstances would make an award unjust.

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BACKGROUND
Mr. Howard filed a claim for disability insurance benefits pursuant to Titles II and XVI
of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83c. He asserted that he had been
disabled from December 1, 2002 due to major depression. After a hearing, the administrative law
judge (“ALJ”) denied Mr. Howard’s claim in a Decision issued June 22, 2010. Mr. Howard
appealed that Decision to the Appeals Council, which denied review of Mr. Howard’s Social
Security Disability Benefits claim and remanded his Supplemental Security Income claim for
further proceedings. The ALJ held a second hearing on August 26, 2011 and denied Mr.
Howard’s claim in a decision issued September 10, 2011. Mr. Howard appealed that Decision to
the Appeals Council, which denied review.
Subsequently, Mr. Howard appealed to this Court, challenging the second Decision on
two grounds: (1) the ALJ failed to weigh the medical evidence properly; and (2) the ALJ failed
to evaluate Mr. Howard’s credibility properly.
On June 26, 2014, this Court reversed the Decision and remanded the case to the
Commissioner for further proceedings. Specifically, this Court held that the ALJ failed to
comply with the Appeals Council’s directions on remand and the ALJ did not follow the correct
legal standards when considering the medical evidence and Mr. Howard’s credibility. In the
instant Motion, Mr. Howard requests attorney fees.
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

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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.
There is no dispute that Mr. Howard is the prevailing party. Hackett v. Barnhart, 475
F.3d 1166, 1168 (10th Cir. 2007). The only issues before the Court are whether the
Commissioner’s position was substantially justified and whether there are special circumstances
that make an award unjust.
As to whether the Commissioner’s position was substantially justified, the Commissioner
bears the burden of proof. Id. at 1170. Under the EAJA, fees generally should not be awarded if
the Commissioner advanced a reasonable or substantially justified 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 has 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).
Applying these standards, the Court finds that the Commissioner’s position was neither
reasonable nor substantially justified. The Commissioner’s position before this Court was that
the ALJ’s findings in the Decision were supported by substantial evidence, but the error that
required reversal was one of law – failure of the ALJ to follow the remand directives and to
apply correct legal standards when considering the evidence. This was a facial infirmity
unrelated to the sufficiency of the evidence.
The Commissioner also argues that that there are special circumstances that make an
award unjust. In particular, she argues that Mr. Howard “did not identify the issue that led to
remand—i.e., whether the ALJ complied with the Appeals Council’s remand order.” It is true
that Mr. Howard did not focus on the Appeals Council’s remand order, but the Commissioner

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should have. Had she done so, the patent error by the ALJ could have been addressed without
expenses associated with this appeal.
However, in addition the Court found that reversal and remand was required because the
ALJ erred by failing to apply the correct legal standard “both in the assessment of the medical
opinions and in the assessment of credibility.” This argument was raised and argued by Mr.
Howard. Again, had the Commissioner recognized, acknowledged and addressed this patent
error, the appeal could have been avoided.
Because the errors that resulted in reversal were clear and patent, and avoidance of this
appeal was squarely within the power of the Commissioner, the Court is unpersuaded by the
Commissioner’s argument that an award of fees against her would be unjust.
There is no issue as to the reasonableness of the fees requested by Mr. Howard.
Accordingly, he is entitled to an award of attorney fees in the amount of $7,482.09.
For the reasons stated herein, IT IS ORDERED that the Motion is GRANTED.
Payment of Mr. Howard’s attorney fees in the amount of $7,482.09 shall be made to Mr. Howard
directly,1 in care of his attorney.
Dated this 10th day of April, 2015.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

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Mr. Howard has included with his Motion an agreement that assigns his rights to any attorney
fees to his attorney. The Court declines to assign his awarded attorney fees to his attorney, as the
EAJA makes it is clear that attorney’s fees will be paid only to the “prevailing party.” Manning
v. Astrue, 510 F.3d 1246, 1249-50 (10th Cir. 2007).
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