Gutierrez v. Social Security Administration

Filing 35

ORDER by Chief Magistrate Judge Karen B. Molzen granting 27 Motion for Attorney Fees. (mlt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CRESENCIANO GUTIERREZ,
Plaintiff,
v.

CIV 15-0027 KBM

NANCY A. BERRYHILL, 1
Acting Commissioner of Social
Security Administration.

ORDER AWARDING ATTORNEY FEES UNDER EAJA
THIS MATTER is before the Court on Plaintiff’s Motion for Attorney Fees
Pursuant to the Equal Access to Justice Act (EAJA), with Memorandum in Support
(Doc. 27), filed on December 27, 2016. Defendant opposes an award of EAJA fees and
argues that the Acting Commissioner’s position was substantially justified on appeal.
Doc. 28. Having reviewed the motion and exhibit, briefs submitted by the parties, and
relevant law, the Court finds an award of fees in the amount requested is reasonable in
this case.
Plaintiff initiated this case seeking remand of the Commissioner’s denial of his
application for social security benefits arguing, among other things, that the ALJ
committed reversible error by failing to follow the “treating physician rule” with respect to
the opinion of James William Melisi, M.D., Plaintiff’s treating neurosurgeon. Doc. 19 at
15. This Court agreed, finding “that this matter should be remanded for reevaluation of
the weight to be assigned to the opinion of” Dr. Melisi. Doc. 25 at 10. This Court’s
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Effective January 20, 2017, Nancy A Berryhill became the Acting Commissioner of the Social
Security Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy
A Berryhill is therefore substituted for former Acting Commissioner Carolyn W. Colvin as the
defendant in this suit.

conclusion was premised primarily on the fact that the ALJ’s decision to accord Dr.
Melisi’s opinions “limited weight” failed to demonstrate that she considered the
regulatory factors stated in 20 C.F.R. §§ 404.1529 and 416.927. Id. at 7-8.
Plaintiff now seeks attorney fees under EAJA. “Under EAJA, a fee award is
required if: (1) plaintiff is a ‘prevailing party’; (2) the position of the United States was not
‘substantially justified’; and (3) there are no special circumstances that make an award
of fees unjust.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quoting 28
U.S.C. § 241(d)(1)(A)). The parties here disagree on the second factor: whether the
position of the Acting Commissioner was “substantially justified.”
“The test for substantial justification in this circuit is one of reasonableness in law
and fact.” Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir 1995) (citing Gutierrez v.
Sullivan, 953 F.2d 579, 585 (10th Cir. 1992)). The Commissioner bears the burden to
establish that her position was substantially justified, both at the appeal and at the
underlying administrative proceedings. Hackett, 475 F.3d at 1172; see also Tomlinson
v. Colvin, CIV-15-699-STE, 2016 WL 5316740, at *1 (W.D. Okla. Sept. 22, 2016).
“Therefore, fees should generally be awarded where the agency’s underlying action was
unreasonable even if the government advanced a reasonable litigation position.”
Tomlinson, 2016 WL 5316740, at *1 (quoting Hackett, 475 F.3d at 1174 (internal
quotation omitted)). The Court finds that the government has not met its burden to show
that its position was substantially justified at the underlying administrative proceeding.
The Acting Commissioner contends that the government’s defense of the ALJ’s
decision was not unreasonable “in light of the specific factual and legal circumstances

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existing in this case.” Doc. 28 at 3. In support of this position the Acting Commissioner
offers three arguments.
First, the Commissioner argues that the Tenth Circuit “has described articulation
standards in the context of a Social Security case as flexible.” Id. at 3 (citing KeyesZachary v. Astrue, 695 F. 3d 1156, 1166 (10th Cir. 2012)). While this may be true, the
Tenth Circuit has also made clear that the record must reflect that the ALJ considered
every relevant regulatory factor in assigning weight to a physician’s opinion. See
Andersen v. Astrue, 319 F. App’x 712, 718 (10th Cir. 2009) (unpublished) (“Although the
ALJ’s decision need not include an explicit discussion of each factor . . . the record must
reflect that the ALJ considered every factor in the weight calculation.”) (emphasis in
original); see also Oceguera v. Colvin, 658 F. App'x 370, 374 (10th Cir. 2016)
(unpublished) (“the ALJ must consider all six factors”) (citation omitted). Those factors
are:
(1) the length of the treatment relationship and the frequency of
examination; (2) the nature and extent of the treatment relationship,
including the treatment provided and the kind of examination or testing
performed; (3) the degree to which the physician's opinion is supported by
relevant evidence; (4) consistency between the opinion and the record as
a whole; (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered; and (6) other factors brought to the ALJ's
attention which tend to support or contradict the opinion.
See 20 C.F.R. §§ 404.1527, 416.927. Here, the Court found that the ALJ failed to
address any of the regulatory factors aside from supportability, Doc. 25 at 8, and the
Tenth Circuit has reversed under a similar set of facts. See Andersen, 319 F. App’x at
772.
Citing cases from the Seventh Circuit, the Commissioner argues that “some
courts have concluded that deficiencies in articulation alone generally do not warrant an
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award of attorney’s fees.” Doc. 28 at 3 (citing Cunningham v. Barnhart, 440 F.3d 862,
865 (7th Cir. 2006); Stein v. Sullivan, 966 F.2d 317, 319-20 (7th Cir. 1992)). Even if
these cases were binding upon this Court, they are distinguishable. Cunningham
affirmed the denial of EAJA fees where “the ALJ failed to connect all the dots in his
[credibility] analysis.” Cunningham, 440 F.3d at 865. The issue here is the treating
physician rule, not credibility, and the Seventh Circuit gave no indication that its
rationale would extend to the treating physician rule. The same is true of Stein, where
the ALJ’s error was merely failing to articulate that all of the evidence in the case was
considered in denying benefits. Stein, 966 F.2d at 320.
The Commissioner also argues that “to the extent that Dr. Melisi offered actual
medical source opinions about Plaintiff’s functional capabilities rather than a mere
conclusory statement of disability, Dr. Melisi’s opinions were entirely consistent with the
ALJ’s RFC finding.” Doc. 28 at 5. In other words, the Commission argues that the ALJ’s
errors were harmless. Id. at 6 (citing Keyes-Zachary, 695 F.3d at 1161, 1165). However,
this assertion ignores Dr. Melisi’s opinion that Plaintiff is totally incapacitated. AR at 417.
While the disability determination is an issue that is reserved to the Commissioner, the
ALJ “was still required to provide an evaluation of the opinion[] and explain [her]
reasons for either rejecting or accepting [it].” See Mayberry v. Astrue, 461 F. App'x 705,
708 (10th Cir. 2012) (unpublished). The ALJ failed to do so in this case, and her error
was not harmless.
The ALJ did not sufficiently explain why she assigned Dr. Melisi’s opinion “limited
weight,” and this Court cannot simply presume the ALJ applied the correct legal
standards in considering the opinion in the absence of express analysis. See Robinson

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v. Barnhart, 366 F.3d 1078, 1083 (10th Cir. 2004). Therefore, because the ALJ failed to
apply the correct legal standards in assessing Dr. Melisi’s opinion, the Court finds that
the Acting Commissioner’s position was not substantially justified and that an award of
EAJA fees is reasonable.
IT IS THEREFORE ORDERED that attorney fees be, and hereby are, awarded
under the Equal Access to Justice Act, 28 U.S.C. § 2412(d), payable to Plaintiff in the
amount of $5,231.00. See Astrue v. Ratliff, 13 U.S. 2521 (2010) (EAJA fees are paid to
the prevailing party, not the attorney).
IT IS FURTHER ORDERED that, if Plaintiff’s counsel receives attorney fees
under both the EAJA and 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s
counsel shall refund the smaller award to Plaintiff pursuant to Weakly v. Bowen, 803
F.2d 575, 580 (10th Cir. 1986).

______________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE
Presiding by Consent

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