Ruhe v. Social Security Administration

Filing 34

MEMORANDUM OPINION AND ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 29 Plaintiff's Motion for Attorney Fees Under EAJA (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JEFFREY RUHE,
Plaintiff,
v.

No. 15-cv-0374 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
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. 29] (“Motion”), filed on
November 3, 2016. Briefing is complete. [Docs. 31, 32]. The parties have consented to the
undersigned’s entering final judgment in this case. [Doc. 10]. Plaintiff moves the Court for an
award of $5,799.80 in attorney fees. [Doc. 29] at 1. Having reviewed the record, the briefing,
and the relevant law, the Court finds that the Motion is well-taken and should be granted.
However, the award should be reduced to $5,787.08.
Background
Plaintiff applied for a period of disability, disability insurance benefits, and supplemental
security income.

See Tr. 17.

An Administrative Law Judge (“ALJ”) denied Plaintiff’s

application on January 9, 2014. Tr. 26. After the ALJ had already issued her unfavorable

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as
the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of
§ 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

decision, Plaintiff submitted opinions by treating2 psychiatrist Dr. Gomez and psychologist
Dr. Gray to the Appeals Council and requested review. Tr. 1–2, 4; see Tr. 635–37, 640−43. The
Appeals Council accepted the evidence and made it part of the record, but denied review. Id.
Accordingly, this Court was required to review the entire record (including the opinions of
Dr. Gomez and Dr. Gray) to determine whether the ALJ’s decision had applied the correct legal
standards and was supported by substantial evidence.

[Doc. 27] at 9 (citing Martinez v.

Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006)).
In reviewing the record, the Court found that Dr. Gomez’s and Dr. Gray’s opinions were
more restrictive than the residual functional capacity (“RFC”) assessment adopted by the ALJ.
Id. Compare Tr. 635–36, 637–38 (Dr. Gray’s opinion), and Tr. 641–43 (Dr. Gomez’s opinion),
with Tr. 21 (ALJ’s RFC). The Court further found that Dr. Gomez’s and Dr. Gray’s opinions
appeared more restrictive than the opinion of the one-time psychological evaluator, Dr. Wynne,
which was the only other mental health opinion in the record. [Doc. 27] at 9. Compare
Tr. 635−36, 637–38 (Dr. Gray’s opinion), and Tr. 641–43 (Dr. Gomez’s opinion), with
Tr. 291−94 (Dr. Wynne’s report).
Despite the fact that the treating opinions were more restrictive than the ALJ’s RFC
assessment, the Commissioner urged the Court to affirm. Her position was that the treating
opinions “d[id] not undermine the ALJ’s decision.” [Doc. 24] at 12 n.4. She cited evidence of
record that she believed supported the ALJ’s decision.

Id. at 12.

Then, she argued that

Dr. Gomez’s and Dr. Gray’s opinions were “extreme” and “departed from the record.” Id. Both

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The Commissioner never disputed Plaintiff’s claim that Dr. Gomez and Dr. Gray were treating physicians whose
opinions, therefore, were entitled to special deference. See [Docs. 24, 31].

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opinions were expressed on check-box forms. Id. She argued that Dr. Gomez’s opinion was
inconsistent with the “contemporaneous evidence” before the ALJ. Id.
The Court was not persuaded that the treating opinions did not undermine the ALJ’s
decision. If the opinions of Dr. Gomez and Dr. Gray had been consistent with the ALJ’s RFC
assessment, then the treating opinions, indeed, would not have undermined the ALJ’s decision
and remand would not have been warranted. [Doc. 27] at 10 (citing Foy v. Barnhart, 139 F.
App’x 39, 44 (10th Cir. 2005) (finding no reversible error where the ALJ’s RFC assessment was
supported by the record as a whole including a treating source opinion submitted to the Appeals
Council)). But they were not consistent, and in the record as it stood before the Court, there was
no discussion about the weight assigned to the opinions of Dr. Gomez and Dr. Gray. Therefore,
the Court could not meaningfully review the apparent rejection of their opinions. The Court
found that the correct legal standard was not applied in evaluating the opinions of Dr. Gomez
and Dr. Gray because there was no discussion of their opinions.3 Id. at 9 (citing Keyes-Zachary
v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012); 20 C.F.R. §§ 404.1527(e)(2)(ii),
416.927(e)(2)(ii)). Accordingly, the Court reversed the Commissioner’s denial of benefits and
remanded the case for further proceedings. Id. at 10–11.
Analysis
Plaintiff now requests an award of attorney fees in the amount of $5,799.80 under the
Equal Access to Justice Act (“EAJA”). See [Doc. 29] at 1; [Doc. 32] at 4. The Commissioner
fails to show that her position was substantially justified because her arguments do not address

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The Court went on to explain why, in this case, the lack of any discussion about the weight of the treating opinions
was not harmless. [Doc. 27] at 10.

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the position she took in the merits briefing. See [Doc. 31] at 2–4. She offers no argument or
authority to explain why she was substantially justified in arguing that Dr. Gomez’s and
Dr. Gray’s opinions did not undermine the ALJ’s decision. See id. However, the amount
requested should be reduced because it includes time for non-compensable clerical work. See id.
at 4−5.
EAJA provides for an award of attorney fees to a plaintiff when: (1) she is a prevailing
party, (2) the position of the United States was not substantially justified, and (3) no special
circumstances would make the award unjust. 28 U.S.C. § 2412(d)(1)(A); Hackett v. Barnhart,
475 F.3d 1166, 1172 (10th Cir. 2007). Here, the parties do not dispute that Plaintiff is a
prevailing party or that no special circumstances would make the award unjust. Instead, they
disagree about whether the Commissioner’s position was substantially justified and whether the
fees requested are reasonable. [Docs. 29, 31, 32].
The Commissioner bears the burden of showing that her position was substantially
justified. Hackett, 475 F.3d at 1172. Her “position” collectively refers to her positions at the
administrative level and before the federal courts in a given case. 28 U.S.C. § 2412(d)(2)(D).
EAJA fees generally should be awarded if the ALJ’s reasons for denying benefits were
unreasonable, “even if the government [subsequently] advanced a reasonable litigation position.”
Hackett, 475 F.3d at 1174 (internal quotation marks omitted).
“The test for substantial justification in this circuit is one of reasonableness in law and
fact.” Id. at 1172 (quoting Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). Substantial
justification is “satisfied if there is a genuine dispute or if reasonable people could differ as to the
appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988)

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(internal quotation marks, citations, and brackets omitted). A district 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.” Hackett, 475 F.3d at 1172 (quoting
Pierce, 487 U.S. at 566).
Similarly, a district court’s order affirming a final decision by the Commissioner does not
itself mean that the Commissioner’s position was substantially justified. Gatson v. Bowen, 854
F.2d 379, 381 n.1 (10th Cir. 1988). For example, when the agency applies the wrong legal
standard, the Commissioner “[cannot] show that h[er] position was substantially justified, either
in making the initial legal error or in arguing in the ensuing litigation that there was no error.”
Chester v. Apfel, 1 F. App’x 792, 795 (10th Cir. 2001); see Gatson, 854 F.2d at 380–81, 381 n.1
(holding that the Commissioner’s position could not be substantially justified where the agency
applied an outdated legal standard—despite the district court’s initial affirmance).
The Commissioner fails to show that her position was substantially justified.
In this case, the Commissioner argues that her position was substantially justified.
[Doc. 31] at 2–4. She presents two arguments, but neither is on point. First, she argues that “the
detailed review of authorities and discussion of the issue contained in the Court’s order . . .
hinted at a lack of clarity in the law.” Id. at 3. She reminds the Court that it had explicitly
“recognized this area of law—i.e., how social security appeals are reviewed when new evidence

is added to the record by the Appeals Council—is neither straightforward nor intuitive.” Id.
at 3–4 (quoting [Doc. 27] at 10 (alterations omitted)). Then, she notes that there was an appeal
pending (at the time she filed her response to the motion for attorney fees) in the Tenth Circuit
Court of Appeals “on the question of whether the Appeals Council [was] required to make

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specific factual findings about new evidence when declining review.” Id. at 4 (citing Vallejo v.
Colvin, Tenth Circuit No. 15-1283).
This argument misses the point. The reversal and remand here was not about whether the
Appeals Council was required to discuss Dr. Gomez’s and Dr. Gray’s opinions.7 [Doc. 27] at 8,
9. (It was not.) The Commissioner’s final decision was reversed and remanded because it was
not supported by substantial evidence and had not applied the correct legal standards, in light of
the record as a whole, including Dr. Gomez’s and Dr. Gray’s opinions. Id. at 9–10. Defendant
does not offer any argument or authority suggesting that she was substantially justified in
arguing otherwise. Compare [Doc. 24] at 12 (the Commissioner’s argument that Dr. Gomez’s
and Dr. Gray’s opinions did not undermine the ALJ’s decision), with [Doc. 31] at 2–4 (the
Commissioner’s arguments on substantial justification). Specifically, she does not argue that she
was substantially justified in taking the position that the treating opinions did not undermine the
ALJ’s decision. Her response to the attorney-fees motion simply does not address the point. See
[Doc. 31].
The only other argument she offers is that she was substantially justified in defending the
ALJ’s decision even though it suffered from “articulation deficiencies.” Id. at 3 (citing two
out-of-circuit cases). The Court is not familiar with the phrase “articulation deficiencies” as a
term of art and does not find it in any Tenth Circuit case. The Court disagrees that the remand
order was based on any deficiency of articulation. Rather, the Court reversed and remanded

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In fact, the Court agreed with the Commissioner on that point. [Doc. 27] at 8, 9. Although the law was (and is)
counterintuitive, it was neither new nor in flux. In agreeing with the Commissioner that the Appeals Council was
not required to discuss Dr. Gomez’s and Dr. Gray’s opinions, the Court relied on Martinez v. Barnhart, which had
been published more than ten years prior. [Doc. 27] at 8, 9 (citing Martinez, 445 F.3d at 1204, 1208). When the
Tenth Circuit issued its decision in Vallejo on February 28, 2017, it also relied on Martinez. 849 F.3d 951, 955
(10th Cir. 2017).

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because, based on the record as a whole, including the new evidence presented to the Appeals
Council, the ALJ’s decision was not supported by substantial evidence and the correct legal
standards had not been applied. [Doc. 27] at 9–11. The Commissioner’s arguments do not
address her litigation position, which was that the treating opinions did not undermine the ALJ’s
decision. Without any argument on point, she does not meet her burden to show that her
litigation position was substantially justified.
The amount of time requested will be reduced by four minutes.
Plaintiff originally requested $5,799.80 in fees for 30.4 hours of attorney time at
$190/hour for work performed in 2015, and $192/hour for work performed in 2016. [Doc. 29-1]
at 1–2. The Commissioner argues that the number of hours should be reduced because Plaintiff’s
counsel has billed for clerical work, which is not compensable under EAJA. [Doc. 31] at 5.
Specifically, the Commissioner takes issue with the entries dated March 27 and May 4, 2015, as
well as January 28 and May 9, 2016. Id. They read:
DATE

ACTIVITY

TIME

3/27/15 Meeting w/ Client. Review ALJ Decision & Appeals Council Denial &
IFP. Federal Court Filing.

1.50

5/4/15

.50

Drafted & Filed Complaint
....

1/28/16 Final Review, proofreading, editing, and filing.

1.00

....
5/9/16

Final review, proofreading & editing submit for filing

1.00

[Doc. 29-1] at 1–2. Although these entries undisputedly reflect some compensable attorney time,
and although the entries total only four hours altogether, the Commissioner estimates that time
should be reduced by “at a minimum, three hours” to account for the clerical tasks. [Doc. 31]
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at 5. Following the Commissioner’s suggestion would leave only one hour for all of the work
reflected above.
Plaintiff does not dispute that clerical work is not compensable under EAJA, nor does he
dispute that filing documents on the Court’s electronic record is clerical work.

However,

Plaintiff states that each instance of electronic filing took only about one minute. [Doc. 32] at 4.
That estimation seems reasonable. Accordingly, the Court will reduce the originally requested
time by four minutes to account for the clerical tasks and, thus, reduce the amount from
$5,799.80 by $12.728 to $5,787.08.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s
Motion for Attorney Fees Pursuant to the Equal Access to Justice Act [Doc. 29] is GRANTED,
and Plaintiff Jeffrey Ruhe is authorized to receive $5,787.08 for payment to his 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 counsel is ultimately granted attorney
fees pursuant to 42 U.S.C. § 406(b) of the Social Security Act, counsel shall refund the smaller
award to Plaintiff pursuant to Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (“Congress
harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out
of the claimant’s past-due Social Security benefits in this manner: Fee awards may be made
under both prescriptions, but the claimant’s attorney must refun[d] to the claimant the amount of
the smaller fee.”) (internal quotation marks omitted).

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Counsel’s average hourly rate in 2015 and 2016 is $191/hour. $191 per hour / 60 minutes = $3.18 / minute times
4 minutes = $12.72.

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IT IS SO ORDERED.

______________________________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent

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