Parks v. Colvin

Filing 20

ORDER denying 18 Opposed Motion for Attorney Fees Under EAJA. By Judge R. Brooke Jackson on 06/02/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge R. Brooke Jackson
Civil Action No 13-cv-01307-RBJ
TAMMY W. PARKS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration,
Defendant.

ORDER

This matter is before the Court on plaintiff Tammy Parks’ Opposed Motion for Attorney
Fees Under EAJA [ECF No. 18]. For the following reasons, the motion is denied.
FACTS
Ms. Parks applied for social security disability benefits on March 27, 2009 claiming that
she had been disabled as of March 24, 2008 due to fibromyalgia, hypertension, bi-polar disorder,
and arthritis. Ms. Parks’ application for benefits was initially denied on May 28, 2009. In
response, Ms. Parks requested a hearing before an Administrative Law Judge (“ALJ”). After
holding a hearing on June 24, 2011, the ALJ issued an unfavorable decision denying Ms. Parks
social security benefits. The Appeals Council denied her request for review on January 18, 2013,
and Ms. Parks filed a timely appeal to this Court on May 17, 2013.
In her appeal, Ms. Parks argued that (1) the ALJ failed to consider her obesity at step
three, (2) the ALJ did not consider her obesity in his RFC assessment, (3) the ALJ improperly
rejected her treating physician’s fibromyalgia diagnosis, (4) the ALJ’s RFC determination did

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not consider the combined impact of all of her impairments, (5) the ALJ failed to consider the
claimant’s work history and motivation to work, (6) the ALJ’s assessment of Ms. Parks’
credibility was not supported by substantial evidence, (7) the ALJ’s credibility analysis
improperly considered Ms. Parks’ daily activities, (8) the ALJ did not follow the applicable legal
standards in analyzing the claimant’s alleged pain, and (9) the ALJ’s step-five analysis was
flawed because the vocational expert (“VE”) did not consider all of the claimant’s impairments.
The Court found little merit with respect to most of these objections but ultimately
reversed on one narrow ground, specifically that the ALJ had failed to explicitly consider Ms.
Parks’ depression when conducting his RFC assessment. (The step-five analysis was ultimately
flawed as a result, as it followed from the RFC assessment.) With respect to two contentions –
that the ALJ failed to consider Ms. Parks’ obesity at step three and that the ALJ did not follow
the correct legal standards in rejecting Ms. Parks’ fibromyalgia diagnosis – the Court concluded
that the errors were likely harmless. However, because the Court remanded the decision on other
grounds, the ALJ was instructed to reanalyze these questions as well. These two alleged errors,
however, did not form a basis for the Court’s ultimate decision to reverse and remand.
ANALYSIS
The Equal Access to Justice Act (“EAJA”) provides:
Except as otherwise specifically provided by statute, 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 . . . 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 he 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.

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In a social security case, the plaintiff is the prevailing party when the district court
remands to the Commissioner of Social Security under the fourth sentence of 42 U.S.C. §
405(g). 1 Hackett v. Barnhart, 475 F.3d 1166, 1168 (10th Cir. 2007). In its March 9, 2015 Order
this Court reversed the decision of the Commissioner to deny Ms. Parks benefits and remanded
the case to the Commissioner for additional review. Thus, Ms. Parks was the prevailing party.
The government has not argued that there are any special circumstances that make an award
unjust. Therefore, this analysis focuses on the second prong: whether the government’s position
was substantially justified.
When contesting an EAJA fee application, the burden is on the government to show that
its position was substantially justified. Hackett, 475 F.3d at 1170. In litigation following an
administrative proceeding, the government’s position is both the position it took in the
underlying administrative proceeding and in subsequent litigation defending that position. Id. at
1174. In the Tenth Circuit “substantially justified” means that the government’s position had a
reasonable basis in both law and fact. Veltman v. Astrue, 261 F. App’x 83, 85 (10th Cir. 2008)
(unpublished). The government’s position is not justified if its position is considered
unreasonable “as a whole.” Hackett, 475 F.3d at 1175. However, “[t]he mere fact that there was
error in the ALJ’s decision does not make the agency’s position unreasonable. An agency’s
position can be justified even though it is not correct.” Veltman, 261 F. App’x at 86.
The Commissioner maintains that her position was substantially justified with respect to
the case as a whole as well as to the only ground warranting reversal. The Court agrees.
Focusing on the latter, the ALJ thoroughly discussed Ms. Parks’ depression during his step three
analysis even if he failed to explicitly incorporate that discussion into Ms. Parks’ RFC
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The fourth sentence of 42 U.S.C. § 405(g) provides: “The court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding the cause for a rehearing.”
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assessment. And, as the government pointed out in its litigation brief, the two providers who
treated Ms. Parks for depression found that her symptoms were not so severe as to limit her
ability to function, including her ability to work. While the Court ultimately reversed and
remanded the decision for a more explicit analysis of Ms. Parks’ depression at the RFC stage, the
record as a whole establishes that the ALJ genuinely considered Ms. Parks’ depression when
performing his overall assessment of her claim. As such, the Court finds that the government’s
position was substantially justified, and that the plaintiff is not entitled to fees under the EAJA.
ORDER
For the foregoing reasons, the Court finds that the government’s position was
substantially justified both at the agency level and in litigation. Plaintiff’s Opposed Motion for
Attorney Fees Under EAJA [ECF No. 18] is therefore DENIED.
DATED this 2nd day of June, 2015.
BY THE COURT:

___________________________________
R. Brooke Jackson
United States District Judge

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