Knuutila v. Colvin

Filing 29

ORDER Granting 24 plaintiffs Motion for Award of Attorneys Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412; That pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A), plaintiff is awarded attorney fees of $7,085.63, by Judge Robert E. Blackburn on 1/21/2016.(evana, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-02139-REB
KELLY A. KNUUTILA,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR AWARD OF ATTORNEYS’
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 Attorney’s Fees
Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 [#24],1 filed
November 24, 2015. I grant the motion.
In this case, plaintiff appealed the Commissioner’s decision denying plaintiff’s
application for supplemental security income benefits. I found that the ALJ committed
legal error insofar as he equated, without explanation, the medical source’s opinion that
plaintiff could perform “simple, repetitive tasks” with unskilled work. 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

“[#24]” 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 Commissioner does not contest 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).

2

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. The Commissioner’s reliance on
the Tenth Circuit’s recent opinion in Vigil v. Colvin, 805 F.3d 1199 (10th Cir. 2015), in
support of her arguments evidences the same myopia that infected the ALJ’s opinion.
The disability determination in Vigil was upheld because the ALJ adequately explained
the basis for his step 4 residual functional capacity determination that the moderate
limitations in concentration, persistence, and pace found at step 3 were not inconsistent
with unskilled work. See id. at 1203-04.
Having so held, however, the court specifically noted that “[t]here may be cases
in which an ALJ's limitation to ‘unskilled’ work does not adequately address a claimant's
mental limitations.” Id. at 1204. Indeed, the court specifically cited its earlier decision in
Chapo v. Astrue, 682 F.3d 1285 (10th Cir. 2012), which plainly stands for the
proposition that an unexplained limitation to simple or unskilled work would not
adequately account for impairments in mental functioning, id. at 1290 n.3.

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Such is precisely what happened here. The ALJ simply translated, without
further examination or explication, Dr. Hilton’s opinion that plaintiff could perform simple,
repetitive tasks to a residual functional capacity for unskilled work. Nothing in Vigil
overrides the Tenth Circuit’s long-standing requirement that mental limitations be
accounted for with precision in terms of work-related functions and mental activities in
the residual functional capacity determination. Jaramillo v. Colvin, 576 Fed. Appx.
870, 876 (10th Cir. Aug. 27, 2014). The Commissioner’s suggestion to the contrary
lacks a reasonable basis in law and therefore cannot be considered substantially
justified. See Pierce, 108 S.Ct. at 2550 n.2. Because the Commissioner has failed to
meet her burden of proof on the issue of substantial justification, plaintiff is entitled to an
award of attorney fees.
Plaintiff requests attorney fees in the amount of $7,085.63 representing 37.5
hours of attorney time devoted to this litigation. The Commissioner presents no
argument that the total amount of time expended, the requested hourly rate,3 or the total
amount of fees requested are unreasonable. 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:
3

Plaintiff’s request includes a request for an increase in the statutory rate to $188.95 per hour as
a cost-of-living adjustment. “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). As the Commissioner offers no argument that this rate is
unreasonable or otherwise unwarranted, I grant plaintiff’s request for an increase in the statutory hourly
rate.

4

1. That plaintiff’s Motion for Award of Attorney’s Fees Pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 [#24], filed November 24, 2015, is granted;
and
2. That pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A),
plaintiff is awarded attorney fees of $7,085.63.
Dated January 22, 2016, at Denver, Colorado.
BY THE COURT:

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