Quezada v. Social Security Administration

Filing 38

ORDER by Magistrate Judge Lourdes A. Martinez GRANTING 30 Motion for Attorney Fees. (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JESUS ORDONEZ QUEZADA,
Plaintiff,

v.

No. CIV-15-282 LAM

CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration,
Defendant.

ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES
UNDER THE EQUAL ACCESS TO JUSTICE ACT
THIS MATTER is before the Court on Plaintiff’s Motion for Attorney Fees Pursuant to
the Equal Access to Justice Act, With Memorandum in Support (Doc. 30), filed
October 25, 2016.

The Commissioner filed a response in opposition to the motion on

November 7, 2016 (Doc. 31), and Plaintiff filed a reply (Doc. 35), and an exhibit to the reply
(Doc. 37), on December 7, 2016. In his motion, Plaintiff asks the Court for an award of attorney
fees in the amount of $5,452.64 as authorized by the Equal Access to Justice Act (hereinafter
“EAJA”) at 28 U.S.C. § 2412(d). [Doc. 30]. The Commissioner opposes the motion because
she asserts that her position in this case was substantially justified.

[Doc. 31].

Having

considered the motion, response, reply, the record in this case, and relevant law, the Court FINDS
that Plaintiff’s motion is well-taken and shall be GRANTED.
EAJA provides for an award of attorney fees to a plaintiff when: (1) he is a prevailing
party, (2) the position of the United States was not substantially justified, and (3) there are no
special circumstances that would make the award unjust. 28 U.S.C. § 2412(d)(1)(A); Hackett v.

Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). The Commissioner bears the burden of showing
that her position was substantially justified. See Hackett, 475 F.3d at 1172. “The test for
substantial justification in this circuit is one of reasonableness in law and fact.” Id. (quoting
Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). The Commissioner must show that her
position was “justified to a degree that could satisfy a reasonable person.” Hackett, 475 F.3d
at 1172 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). A court’s remand order does
not mean, ipso facto, that the Commissioner’s position was not substantially justified; that is, her
“position can be justified even though it is not correct . . . if it has a reasonable basis in law or fact.”
Hackett, 475 F.3d at 1172 (quoting Pierce, 487 U.S. at 566, n.2). However, even when the
Commissioner prevails on most issues before the district court, the Court can still find that the
Commissioner “acted unreasonably in denying benefits at the administrative level.” Hackett,
475 F.3d at 1174, n.1.
In this case, this Court entered a Memorandum Opinion and Order (Doc. 28), which
granted Plaintiff’s motion to reverse or remand the administrative agency decision, and remanded
this case to the Commissioner for “a determination, in accordance with SSR 83-20, of the onset
date of Plaintiff’s disability.” Id. at 21. The Commissioner asserts that her opposition to
Plaintiff’s claims in this case was substantially justified because another opinion from this District,
Jaramillo v. Colvin, CIV-14-0298 SMV (D. N.M. May 4, 2015) (unpublished), supports her
position that the procedures set forth in Soc. Sec. Rep. 83-20 did not apply to Plaintiff’s claim.
[Doc. 31 at 4]. The Commissioner also contends that her stand on SSR 83-20 is supported by
Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001) “and several other circuit court cases” that were
cited in her brief opposing Plaintiff’s motion to remand. Id. at 5. Finally, the Commissioner
asserts that the Appeals Council, when it remanded this case following Plaintiff’s first successful

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appeal, “did not mention SSR 83-20 or direct the ALJ to obtain the assistance of a medical expert,
and it clearly instructed the ALJ to proceed through the five-step sequential evaluation process for
the period of time between Plaintiff’s alleged onset date (March 2008) and Plaintiff’s [date last
insured] (December 2009).” Id. at 6.
First, the Court finds that the Commissioner’s reliance on Jaramillo is misplaced.
Significantly, the Commissioner did not rely on Jaramillo in her response to Plaintiff’s motion to
remand, despite the fact that the Jaramillo decision pre-dated the filing of that response by nearly a
year. Compare [Doc. 23] (the Commissioner’s response to Plaintiff’s motion to reverse or
remand, filed April 11, 2016) with [Doc. 25, filed in Jaramillo, CIV-14-298] (entered
May 4, 2015). The Commissioner cannot retroactively imbue her opposition to Plaintiff’s motion
to remand with substantial justification by now relying on a decision upon which she did not rely at
the time. In addition, the discussion of Blea v. Barnhart, 466 F.3d 903 (10th Cir. 2006) in
Jaramillo upon which the Commissioner relies is both dicta and clearly distinguishable from the
facts in the present case. In Jaramillo, the Plaintiff had filed two SSI claims at different times and
with respect to two different time periods, the first of which was denied and the second of which
was granted. See [Doc. 25, filed in Jaramillo, CIV-14-298, at 3-4]. In this case, Plaintiff filed a
DIB claim that was denied, followed by an SSI claim that was granted. See [Doc. 28 at 2-3]. In
Jaramillo, the case was reversed and remanded for an immediate reward of benefits, based on the
ALJ’s inadequate consideration of the opinions of several medical sources. The statements in
Jaramillo that the Commissioner now interprets as granting substantial justification to her position
in this case were made in connection with the rejection of Ms. Jaramillo’s claim that the ALJ in
that case had also erred by failing to apply SSR 83-20, rather than the traditional SEP. See
[Doc. 25, filed in Jaramillo, CIV-14-298, at 7-9]. That claim by Ms. Jaramillo was briefly

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considered and denied after her other grounds for appeal had been granted, and the statements
made with respect to that unnecessary ground for reversal were thus dicta.

See id. at 7.

Additionally, the court in Jaramillo relied, at least in part, on the Commissioner’s “Hearings,
Appeals, and Litigation Law Manual,” which provides that an approval of a subsequent claim does
not “invade” a previous adjudication for a different period, as well as the fact that Ms. Jaramillo
“herself seem[ed] to acknowledge” that approval of her second application was not determinative
of disability in her first. Id. at 8. Finally, the Jaramillo Court distinguished Blea on the ground
that Ms. Jaramillo’s “second application was approved based on evidence that is not relevant to the
first application and is not part of the record on the first application.” Id. at 9-10. In the present
case, the ALJ denied Plaintiff’s claim after she was informed by the Appeals Council that it had
affirmed a finding of disability in Plaintiff’s subsequent SSI claim, beginning April 1, 2013, but
that “the period prior to [that date] requires further administrative proceedings.” [Doc. 15-17
at 9]. Moreover, prior to the ALJ’s post-remand hearing, Plaintiff’s counsel specifically asserted
that the procedures set forth in SSR 83-20 and Blea were applicable to the ALJ’s ruling.
[Doc. 15-22 at 15-17]. Therefore, this Court finds that the Commissioner’s position was not
substantially justified as to this contention.
The Court next rejects the Commissioner’s contention that her position was substantially
justified based on cases from other Circuits. The regulations governing DIB claims specifically
provide that the Administration “will apply a holding in a United States Court of Appeals
decision,” even if the decision conflicts with the Administration’s own interpretation of the law,
and will apply that decision “to claims at all levels of the administrative review process within the
applicable circuit,” with limited exceptions.

20 C.F.R. § 404.985(a).

SSR 83-20 is the

Administration’s own interpretation of the law, and Blea is the Tenth Circuit Court of Appeals’

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interpretation of both SSR 83-20 and the law. Pursuant to this regulation, the Administration is
bound to apply Tenth Circuit decisions in this Circuit. Therefore, whether or not some other
Circuits have or have not held differently does not give the Commissioner’s attempt to circumvent
Blea in this case the justification that would preclude Plaintiff’s recovery of his attorney’s fees
under the Equal Access to Justice Act based on his successful argument that Blea should have been
applied by the ALJ. The Court, therefore, finds that the Commissioner’s position was not
substantially justified as to this contention, as well.
Finally, the Court rejects the Commissioner’s assertion that her position was substantially
justified because the Appeals Council did not direct the ALJ to obtain the assistance of a medical
advisor, as required by Blea. Significantly, this argument ignores the relationship of the parties in
this proceeding. The ALJ, the Appeals Council, and the Commissioner are all parts of the same
entity, which is the Social Security Administration. The alleged error of one part of an entity does
not give another part of that entity substantial justification for its conduct. Whatever the Appeals
Council or the Commissioner herself may have done to “cause” the ALJ to render a decision that
was reversed and remanded on appeal, it would not “substantially justify” the ALJ’s error. Even
more significantly, ALJs are charged with knowing and applying the law and, therefore, any
failure by the Appeals Council to “direct” the ALJ to follow the law is without significance. The
Appeals Council did not direct the ALJ to disregard the law and, even if it had, the ALJ could have
followed the appropriate procedure anyway or, at the very least, issued a decision stating that she
felt compelled to comply with the Appeals Council’s mandate. However, neither of those events
occurred, leading this Court to conclude that the Commissioner’s argument, that the Appeals
Council’s failure to specifically direct the ALJ to apply the procedures outlined in Blea for

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determining the onset date of Plaintiff’s disability provides substantial justification for her
opposition to Plaintiff’s appeal, is without merit.
IT IS THEREFORE ORDERED, for the reasons stated above, that Plaintiff’s Motion
for Attorney Fees Pursuant to the Equal Access to Justice Act, With Memorandum in Support
(Doc. 30) is GRANTED, and that Plaintiff is authorized to receive $5,452.64 in attorney’s fees for
payment to Plaintiff’s attorney for services before this Court, as permitted by the Equal Access to
Justice Act, 28 U.S.C. § 2412, and in accordance with Manning v. Astrue, 510 F.3d 1246, 1255
(10th Cir. 2007).
IT IS FURTHER ORDERED that, if Plaintiff’s attorney is ultimately granted attorney
fees pursuant to 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s attorney shall refund the
smaller award to Plaintiff pursuant to Astrue v. Ratliff, 560 U.S. 586, 596 n.4 (2010) (explaining
that, if a claimant’s attorney is ultimately granted attorney fees under § 406(b) out of the
claimant’s benefit award, the claimant’s attorney must refund to the claimant the amount of the
smaller fee).
IT IS SO ORDERED.

___________________________________
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent

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