Marin v. Colvin
Filing
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ORDER; 24 Plaintiffs Motion for Attorney Fees Under Equal Access to Justice Act (EAJA) 28 USC § 2412(d) is GRANTED, by Magistrate Judge Kathleen M. Tafoya on 12/1/15.(morti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 14–cv–01331–KMT
LISA F. MARIN,
Plaintiff,
v.
CAROLYN COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
ORDER
The matter before the court is “Plaintiff’s Motion for Attorney Fees Under Equal Access
to Justice Act (EAJA) 28 USC § 2412(d).” (See Doc. No. 24 [Motion], filed Oct. 12, 2015.)
Defendant, the Acting Commissioner of Social Security (“the Commissioner”), filed her
response brief on November 2, 2015 (Doc. No. 26 [EAJA Resp. Br.]), and Plaintiff filed her
reply brief on November 4, 2015 (Doc. No. 27 [EAJA Reply Br.]).
FACTUAL AND PROCEDURAL BACKGROUND
Claimant applied for DIB and SSI in December of 2011, alleging that she had been
disabled since October 2006 by a painful gastrointestinal condition called Diverticulosis. (Doc.
No. 22 [Order] at 1, filed Aug. 24, 2015.) The Commissioner denied her DIB and SSI
applications in March of 2012. (Id.) Following the denials, Claimant requested and received a
hearing by an Administrative Law Judge (“ALJ”). (Id. at 1–2.) After the hearing, the ALJ
determined that Claimant was not disabled within the meaning of section 1614(a)(3)(A) of the
Act because she was still capable of performing some of her previous work. (Id. at 2.) The
Appeals Council subsequently denied Claimant’s request for review, making the ALJ’s decision
the final decision of the Commissioner for purposes of judicial review. (Id.) Claimant appealed
the ALJ’s decision to this court. (Id.)
On appeal, Plaintiff alleged, among other things, that the Residual Functional Capacity
(“RFC”) assessment 1 of the ALJ was legally insufficient because it omitted mental limitations
the ALJ had acknowledged and accepted earlier in his written decision. (Doc. No. 15 [Opening
Br.] at 21.) The Commissioner defended the ALJ’s actions by arguing that the ALJ considered
the omitted mental limitations and “explained why he found no [mental] limitations in the
residential functional capacity assessment.” (Doc. No. 16 [Resp. Br.] at 13.)
This court found that the ALJ’s failure to explain the absence of Plaintiff’s non-severe
mental limitations from Plaintiff’s RFC constituted reversible error because it violated Tenth
Circuit precedent and prevented the court from being able to determine whether the ALJ, as
required by law, considered claimant’s mental impairments during his RFC assessment. (Order
at 5–7.) The court reversed and remanded on that basis without reaching any of Plaintiff’s other
arguments. (Id. at 7.)
After prevailing in its appeal, Plaintiff now seeks $6,460.00 in attorney fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). (Mot. at 1; Doc. No. 25
[EAJA Opening Br.], filed Oct. 12, 2015.) Plaintiff argues that she is entitled to these fees under
EAJA because the ALJ’s decision and the Commissioner’s subsequent defense of that decision
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A claimant’s RFC is the ALJ’s assessment of the most the claimant can do in a work setting on
a regular and continuing basis despite the limitations imposed by his or her impairments. SSR
96-8p, 1996 WL 374184 at *1, 3.
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was not “substantially justified.” (EAJA Opening Br. at 4; EAJA Reply Br. at 5.) The
Commissioner maintains that her actions and arguments were reasonable and, therefore,
substantially justified. (EAJA Resp. Br. at 1.)
LEGAL STANDARD
The EAJA awards attorney fees to a prevailing party in a Social Security Disability case
when the United States took a position that was not “substantially justified.” See 28 U.S.C.
§ 2412(d)(1)(A). The government’s position is “substantially justified” when the government’s
action and supporting arguments were “reasonable even if wrong.” Madron v. Astrue, 646 F.3d
1255, 1257 (10th Cir. 2011) (emphasis author’s own). The test is simply “one of
reasonableness” in law and fact. Id. (quoting Pierce v. Underwood, 487 U.S. 552, 563–65
(1988)). Though, generally, EAJA fees should be awarded when the government’s underlying
action was unreasonable, it is possible for the government’s reasonable position during litigation
to “cure” an earlier unreasonable government action. Hackett v. Barnhart, 475 F.3d 1166, 1174
(10th Cir. 2007) (citations and quotations omitted). The government has the burden of
establishing that its position was substantially justified. Id. at 1169 (citation and quotations
omitted). If awarded, EAJA attorney fees must be reasonable. Robinson v. City of Edmond, 160
F.3d 1275, 1281 (10th Cir. 1998).
ANALYSIS
In support of its Motion, Plaintiff argues that ALJ’s failure to follow “Tenth Circuit
rulings and social security regulations” and the Commissioner’s subsequent defense of those
failures was unreasonable. (EAJA Opening Br. at 8.) For the most part, Plaintiff relies on the
court’s reasoning in the order reversing the ALJ’s decision, but emphasizes the court’s findings
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that the Farrill Court reversed on nearly identical facts. (See id. at 2–4.) The Commissioner
maintains that the ALJ considered Plaintiff’s non-severe mental impairments when constructing
Plaintiff’s RFC. (See EAJA Resp. Br. at 3.) As support, the Commissioner refers to 1) the
ALJ’s statement that he “considered all impairments, even those found to be non-severe . . .” and
2) the ALJ’s credibility assessment of Plaintiff, which contained the statement that Plaintiff
“retained significant mental . . . capacity.” 2 (Id.)
There is no dispute that Plaintiff is the prevailing party. (See generally EAJA Opening
Br.; EAJA Resp. Br.) The threshold question for the court then is whether the Commissioner’s
position was reasonable, which is really two separate inquiries: A) whether the ALJ’s failures
were reasonable, even if wrong, and B) whether the Commissioner’s defense of the ALJ’s
failures was reasonable, even if wrong. See Hackett, 475 F.3d at 1174 (“reasonable even if
wrong.”) (emphasis author’s own). If the court determines that, overall, the Commissioner has
acted unreasonably, then court must decide whether the attorney fees requested by Plaintiff’s
attorney are reasonable. Robinson, 160 F.3d at 1281.
A. The Reasonableness of the ALJ’s Failures
The court’s order reversing and remanding the ALJ’s decision cited Farrill as a nearly
identical case where the Tenth Circuit reversed and remanded, in part, because, like here, that
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The Commissioner also argues that Plaintiff has not identified any evidence establishing any
mental limitations, and Plaintiff dedicates a portion of her reply brief addressing these
arguments. (EAJA Resp. Br. at 4–5; EAJA Reply. Br. at 3–4.) These arguments, however, are
irrelevant to the question presently before the court. The court’s order did not address the
propriety of excluding Plaintiff’s mental limitations from Plaintiff’s RFC. (See generally Order.)
Rather, the order stated that the ALJ’s failure to explain the absence of those limitations from the
RFC was reversible error because it contravened precedent and prevented the court from
determining whether the ALJ had considered Plaintiff’s mental limitations during his RFC
assessment. (Id. at 7.)
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ALJ omitted Claimant’s mental impairments from that claimant’s RFC without explanation,
despite acknowledging those very same impairments at an earlier stage of the ALJ’s disability
analysis. (See Order at 6–7.) Farrill was decided in 2012. The ALJ decision in this case was
rendered June 7, 2013 (Doc. No. 12 [AR] at 33), and the appeal before this court was filed May
13, 2014 (Doc. No. 1). Neither the ALJ nor the Commissioner cited any precedent that calls
Farrill’s holding into question. (See generally AR at 23–34; Resp Br.) The ALJ’s failure to
follow Farrill when the facts of Farrill so closely parallel the facts of Plaintiff’s case is therefore
unreasonable.
B. The Reasonableness of the Commissioner’s Defense of the ALJ’s Failures
In its litigation brief, the Commissioner argued that Farrill “is not instructive because the
ALJ here . . . explained why he found no limitations in the residual functional capacity
assessment.” (Resp. Br. at 13.) To the contrary, and as explained in detail in the court’s order
reversing and remanding the ALJ’s decision, the facts of Farrill are nearly identical to the facts
of Plaintiff’s case. (See Order at 6–7.) The court finds the Commissioner’s position to be
unreasonable.
Moreover, in her brief opposing Plaintiff’s Motion for attorney fees under the EAJA, the
Commissioner reiterates the same unsuccessful arguments she raised in response to Plaintiff’s
appeal of the ALJ’s decision—arguments this court specifically rejected. (See generally EAJA
Resp. Br.) First, the Commissioner argues that the ALJ stated that he “considered all
impairments, even those found to be non-severe . . . .” (Id. at 3.) But in reversing and
remanding the ALJ’s decision, the court specifically found that such “boilerplate language” was
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insufficient to demonstrate the ALJ’s consideration of Plaintiff’s mental impairments. (Order at
5.)
Second, the Commissioner argues that the Court should “take a lower tribunal at its word
when it declares that it has considered a matter,” citing Flaherty v. Astrue, 515 F.3d 1067, 1071
(10th Cir. 2007). (EAJA Resp. Br. at 3.) The court agreed that it “will accept an ALJ’s
declaration that he or she considered certain impairments when constructing a claimant’s RFC,”
but only if “the ALJ’s discussion of the evidence and reasoning demonstrates the ALJ’s
consideration of those impairments.” (Order at 5.) The court explained that while Flaherty said
that the Court generally “take[s] a lower tribunal at its word when it declares that it has
considered a matter,” it is the ALJ’s “discussion of the evidence and his reasons for his
conclusions” that “demonstrate[s] that he considered all of [the claimant’s] impairments.” (Id.)
The Commissioner’s response brief still fails to acknowledge this critically important part of the
Flaherty holding. (See EAJA Resp. Br. at 3.)
Third, the Commissioner cites the ALJ’s statement that Plaintiff “retained significant
mental . . . capacity,” a statement made as part of the ALJ’s assessment of Plaintiff’s credibility,
as more evidence that the ALJ considered Plaintiff’s mental impairments when assessing her
RFC. (Id. at 1, 3.) The court found, however, that “[a] single sentence about why the ALJ did
not find Claimant’s subjective testimony credible does not explain why the ALJ excluded from
his RFC assessment those mental limitations that he had already acknowledged and accepted at
step-two of his disability review process.” (Order at 6.) The court added, “Nor does it
demonstrate that the ALJ adequately considered those mental limitations when constructing the
claimant’s RFC.” (Id.) Despite the court’s express rejection of this argument, the Commissioner
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repeats this same argument in its briefs opposing the imposition of attorney fees under the EAJA.
(EAJA Resp. Br. at 1, 3.) The court finds this continuing position to be unreasonable.
The court therefore finds that the Commissioner has failed to meet her burden to
demonstrate that the Commissioner’s position was reasonable, either at the administrative stage
or the litigation stage. Plaintiff is entitled to attorney fees under the EAJA.
C. Whether Plaintiff’s Requested Attorney Fees Are Reasonable
Plaintiff requests the court award her $6,460.00 in attorney fees. (EAJA Reply Br. at 5.)
The Commissioner does not dispute the reasonableness of the attorney fees requested by
Plaintiff, and neither party argues that there are any special circumstances counseling against the
imposition of attorney fees. (See generally EAJA Opening Br.; EAJA Resp. Br.) The
Commissioner argues only that attorney fees awarded under the EAJA go to the Plaintiff, not her
attorney. (EAJA Resp. Br. at 5.)
To determine a reasonable fee request, the Court must first calculate the “lodestar
amount.” Robinson, 160 F.3d at 1281. The lodestar amount is the “number of hours reasonably
expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart, 461
U.S. 424, 433 (1983). The EAJA hourly rate for legal services is $125.00 per hour, but the Court
may award a fee at a higher hourly rate depending on, among other things, increases in the cost
of living. 28 U.S.C. § 2412(d)(2)(A). A fee award may include the fees incurred in litigating the
fee dispute itself. Commissioner v. Jean, 496 U.S. 154 (1990); Brodeur v. Astrue, 2010 WL
4038611, at *4 (D. Colo. Oct. 14, 2010) (awarding claimant’s entire fee request, including fees
based on time spent in connection with an EAJA reply brief). Attorney fees awarded under the
EAJA are payable to the prevailing party, not the prevailing party’s attorney. Astrue v. Ratliff,
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560 U.S. 586, 586 (2010). This payment is subject to government offsets satisfying the litigant’s
pre-existing debt to the government. Id.
Plaintiff requests an attorney fee rate of $190.00 per hour for a total of thirty three hours,
plus an additional hour for drafting her reply brief for her Motion, for a total award of $6,460.
(Doc. No. 24-2 [Log]; EAJA Reply Br. at 5.) Mr. Noel, Plaintiff’s attorney, attached an itemized
statement of actual time expended litigating this matter, excluding the additional hour required to
draft the reply brief. (Log.) Mr. Noel also states that $190 per hour represents the $125 per hour
EAJA maximum when adjusted for the 2014 to 2015 consumer price index. (EAJA Opening Br.
at 10.) Courts in this district have approved hourly rates of more than $190 after adjusting the
EAJA fee limit for cost of living in 2014 and 2015. See, e.g., Ruckdeschel v. Colvin, No. 13-cv2803-WJM, 2015 WL 4944073, at *2 (D. Colo. Aug. 20, 2015). These same courts have
concluded that appealing a social security disability case typically takes between twenty to forty
hours. Id. The lodestar amount for thirty three plus one hours at $190 is $6,460—exactly what
Plaintiff requests. With no opposition by the Commissioner, the court therefore finds Plaintiff’s
request for $6,460, representing thirty-four total hours of work at $190 per hour, is reasonable for
this district in the year 2015.
Accordingly, it is
ORDERED that “Plaintiff’s Motion for Attorney Fees Under Equal Access to Justice
Act (EAJA) 28 USC § 2412(d)” (Doc. No. 24) is GRANTED. The Commissioner is ordered to
pay Plaintiff $6,460 for attorney fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d)(1)(A). It is further
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ORDERED that the EAJA attorney fee award shall be made payable to Plaintiff and
mailed to Plaintiff’s attorney pursuant to Astrue v. Ratliff, 560 U.S. 586, 586 (2010) and
Manning v. Astrue, 510 F.3d 1246, 1251 (10th Cir. 2007).
This 1st day of December, 2015.
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