Benvenuti v. Social Security Administration

Filing 31

ORDER Granting 26 MOTION for Attorney Fees by Magistrate Judge Carmen E. Garza. (mhr)

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

JAMES ANTHONY BENVENUTI,
Plaintiff,
v.

No. 2:15-CV-00891-CG

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court upon Plaintiff James Anthony Benvenuti’s
Motion for Attorney Fees and Costs Pursuant to the Equal Access to Justice Act (the
“Motion”), (Doc. 26), filed January 23, 2017; Defendant Commissioner Nancy A.
Berryhill’s Defendant’s Response in Objection to Plaintiff’s Motion and Memorandum
Brief for Attorney Fees Pursuant to the Equal Access to Justice Act (the “Response”),
(Doc. 27), filed January 31, 2017; and Plaintiff’s Reply in Support of Motion for Attorney
Fees and Costs Pursuant to the Equal Access to Justice Act (the “Reply”), (Doc. 28),
filed February 17, 2017. Having reviewed the Motion, the Response, the Reply, and
relevant law, the Court finds that Plaintiff’s Motion should be GRANTED.
I.

Background

On July 30, 2011, Mr. Benvenuti filed an application for disability benefits with the
Social Security Administration, alleging disability commencing on July 7, 2006.
(Administrative Record (“AR”) 130, 134-142). His claim for benefits was initially denied
and again upon reconsideration. (AR 69-72, 76-78). A request for a hearing was filed,

and a hearing was held on April 1, 2014 before an Administrative Law Judge (“ALJ”),
who issued an unfavorable decision. (AR 30-57, 79-80). Mr. Benvenuti then filed an
application for review by the Appeals Council, which was summarily denied. (AR 1-4,
13).
Thereafter, Mr. Benvenuti appealed to this Court, arguing that the ALJ committed
reversible, legal error by failing to: (1) apply the correct legal standards at step two; (2)
address evidence demonstrating that Mr. Benvenuti’s physical and mental impairments
are severe; and (3) develop the administrative record. (Doc. 16 at 2). Because the ALJ
did not evaluate the entire medical record before making findings at step two, the Court
remanded the case to the Commissioner of the Social Security Administration (the
“Commissioner”) for further proceedings in its Memorandum Opinion and Order (the
“Order”). (Doc. 24).
Mr. Benvenuti now moves this Court for attorney’s fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”). (Doc. 26). He argues that an
award of fees is appropriate because he is the prevailing party, his net worth is less
than $2,000,000, and the Commissioner’s position in defending the action was not
substantially justified. (Doc. 26 at 1).
The Commissioner responds that Mr. Benvenuti’s request for fees under EAJA
should be denied based on the special circumstances that the Court’s remand was on
an issue that was not argued or briefed by Plaintiff and therefore not defended by the
Commissioner. (Doc. 27 at 1). Further, the Commissioner argues that the
Commissioner’s position in this case was substantially justified. (Doc. 27 at 1).

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II.

Analysis
A. Standard of Review

Pursuant to EAJA, a court is required to award attorney’s fees 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) (citing 28 U.S.C. § 2412(d)(1)(A)).
Here, the Commissioner disputes whether her position was substantially justified and
argues that there are special circumstances.
“The test for substantial justification in this circuit is one of reasonableness in law
and fact.” Hackett, 475 F.3d at 1172 (citing Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th
Cir. 1995)). In order to be substantially justified, the government’s position must be
“justified in substance or in the main-that is, justified to a degree that could satisfy a
reasonable person.” Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988) (citing
Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “The term position includes the
government's position both in the underlying agency action and during any subsequent
litigation.” Hadden, 851 F.2d at 1267 (internal citations omitted).
“When an area of law is ‘unclear or in flux, it is more likely that the government’s
position will be substantially justified.’” Cherry v. Barnhart, No. 04-5059, 125 Fed. Appx.
913, 916 (10th Cir. Jan. 24, 2005) (unpublished) (citing Martinez v. Sec’y of Health and
Hum. Servs., 815 F.2d 1381, 1382 (10th Cir. 1987)). Indeed, “the government’s position
can be justified even though it is not correct.” Hackett, 475 F.3d at 1172 (citing Pierce,
487 U.S. at 566 n.2). “The government bears the burden of showing that its position
was substantially justified.” Gilbert, 45 F.3d at 1394 (internal citations omitted).

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An EAJA award may also be denied or reduced if “special circumstances make
an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Neither “special circumstances” nor
“unjust” are defined by the statute. However, the Eighth Circuit notes that “equitable
considerations should inform a court’s decision in this area.” Walker v. Berryhill, No.
CIV-15-1353-R, 2017 WL 782921, at *1 (W.D. Okla. Feb. 28, 2017) (unpublished)
(citing United States Dept. of Labor v. Rapid Robert’s Inc., 130 F.3d 345, 347 (8th Cir.
1997)). Additionally, the Second Circuit has found that awards should be reduced based
on a plaintiff’s reduced contribution in the ultimate decision. Id. (citing Firstland Int’l, Inc.
v. INS, No. 06-1704-ag, 264 Fed. Appx. 22, 25 (2d. Cir. Jan. 25, 2008) (unpublished)
(“Plaintiffs’ only contribution to their ultimate victory in the underlying case was the
supplemental brief they submitted at this Court’s request. We conclude that an award of
fees for any amount greater than the cost of preparing that supplemental brief would be
unjust.”)).
The Court will first address the Commissioner’s argument that because the Court
remanded the case on an argument the Commissioner did not respond to, there are
special circumstances that would make an award of EAJA fees unjust. Then, the Court
will address whether the Commissioner was substantially justified.
B. The are no Special Circumstances in this Case
First, the Court will address whether EAJA fees should be denied because the
Commissioner did not argue the ultimate issue for which the case was remanded. In this
case, the Court remanded the ALJ’s decision because the ALJ failed to consider the
entire medical record when making his step two determination. (Doc. 24 at 2). The
Court determined that the ALJ failed to discuss a consultative examination conducted

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by John R. Vigil, M.D., CME. (Doc. 24 at 7-8). Because the ALJ failed to perform “a
careful evaluation of the medical findings,” the Court was unable to determine whether
the ALJ completed the required analysis at step two. (Doc. 24 at 8).
The Commissioner argues that there are special circumstances that would
make an award of fees unjust in this case. (Doc. 27 at 1). Specifically, the
Commissioner maintains that the Court remanded the case on an issue that was not
argued by the parties, and therefore, an award of fees would be improper. (Doc. 27 at 2)
(citing Contreras v. Barnhart, No. 03-50139, 79 Fed. Appx. 708, 709 (5th Cir. Nov. 5,
2003) (unpublished); United States v. 27.09 Acres of Land, More or Less, Situated in
Town of Harrison & Town of N. Castle, 43 F.3d 769, 773-74 (2d Cir. 1994)). The
Commissioner argues that Mr. Benvenuti should be denied attorney’s fees because he
did not argue that the case should be remanded based on Dr. Vigil’s opinion.
In his brief, Mr. Benvenuti argued that the ALJ did not base findings at step two
on the medical evidence. (Doc. 16 at 2). Specifically, Mr. Benvenuti noted the medical
evidence in the record that showed he suffered from Meniere’s disease, a back injury,
depression, knee pain, diabetes, and obesity. (Doc. 16 at 9). In its Opinion, the Court
agreed with Mr. Benvenuti that the ALJ did not address the medical evidence in making
his step two analysis. The Court more specifically however, found that the ALJ did not
analyze Dr. Vigil’s opinion, which the Court found was error.
Mr. Benvenuti’s brief generally described the ALJ’s failure to analyze the medical
evidence at step two; whereas the Court was more specific. However, the Court agreed
with Mr. Benvenuti’s argument that the ALJ did not analyze the medical evidence in the
record. “Simply put, and as [Mr. Benvenuti] has argued, there was a discrepancy

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between” the ALJ’s finding and the medical evidence in the record, “meaning the ALJ”s
finding[s] were not supported by substantial evidence.” Walker v. Berryhill, No. CIV-151353-R, 2017 WL 782921, at *2 (W.D. Okla. Feb. 28, 2017) (unpublished) (finding no
special circumstances where the Plaintiff argued the VE listed jobs that required
frequent reaching when Plaintiff could only perform occasionally and the Magistrate
Judge remanded because the ALJ presented a hypothetical to the VE that included a
limitation to lifting rather than reaching).
Therefore, this is not a case, as the Commissioner argues, where Mr. Benvenuti
“did not brief the issues that served as the basis for the remand and the attorney’s
efforts did nothing more than to keep [Mr. Benvenuti’s] case alive.” Contreras, 79 Fed.
Appx. at 709. The Court cannot say that the attorney made “efforts that achieved no
appreciable advantage” nor that the attorney “made no contribution.” Id. (quoting 27.09
Acres, 43 F.3d at 773). Thus, special circumstances do not exist that would make an
award of fees unjust.
C. The Commissioner’s Position was not Substantially Justified
The second issue here is whether the Commissioner has met her burden to show
that she was substantially justified in failing to discuss medical evidence at step two.
Hartter v. Apfel, No. 99-3095, 202 F.3d 282, *2 (10th Cir. Jan. 11, 2000) (unpublished).
This Court finds that the Commissioner has not.
The Commissioner argues she did not take a position on the issue of Dr. Vigil’s
opinion in the brief as it was not argued by Mr. Benvenuti. (Doc. 27 at 5). Further, the
Commissioner contends that her position was substantially justified because Dr. Vigil’s

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consultative examination and opinion regarding Mr. Benvenuti’s limitations were
decided three years after the disability period. (Doc. 27 at 5).
As the Court explained in its Order, at step two the ALJ must determine whether
there is medical evidence in the record that shows an impairment or combination of
impairments that is so severe, a claimant is unable to engage in substantial gainful
activity. Social Security Regulation (“SSR”) 85-28, 1985 WL 56856 *3 (Jan. 1, 1985). In
finding that Mr. Benvenuti did not have a severe impairment, the ALJ did not discuss Dr.
Vigil’s opinion. Dr. Vigil both examined Mr. Benvenuti and looked at his medical record,
which included records from the alleged period of disability. Failing to evaluate the
medical evidence at step two was error. The Commissioner has not explained why she
was substantially justified in defending this error.
In his Motion, Mr. Benvenuti argued that the ALJ did not assess the severity of
his impairments in accordance with SSR 85-28, which requires the ALJ to “determine
whether medical evidence establishes” a severe impairment. SSR 85-28, at *3. In
making the determination at step two, Mr. Benvenuti maintained in his Motion that the
ALJ did not discuss the SSR 85-28 factors and described Dr. Vigil’s opinion. (See Doc.
16). Therefore, the Commissioner had an opportunity to address the argument that the
ALJ did not properly consider the evidence at step two and the Court remanded the
case based on this evidence.
The Commissioner tries to justify the ALJ’s failure to review Dr. Vigil’s opinion by
stating that it had no relevance to the case. However, the Court does not accept this
reasoning, as the Commissioner’s post hoc arguments cannot supplement the ALJ’s
decision. Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004).

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III.

Conclusion

For the reasons discussed above, the Court concludes that the Commissioner
was not substantially justified in her position in the underlying agency action and the
subsequent litigation and there are no special circumstances involved in this case.
Accordingly, Mr. Benvenuti is entitled to an award of attorney’s fees under EAJA.
IT IS THEREFORE ORDERED that Mr. Benvenuti’s Motion for Attorney Fees
and Costs Pursuant to the Equal Access to Justice Act, (Doc. 26), be GRANTED and
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 $5,941.80 in fees and $400.00
in costs. See Astrue v. Ratliff, 560 U.S. 586 (2010) (EAJA fees are paid to the plaintiff,
not the plaintiff’s attorney).
IT IS FURTHER ORDERED THAT, if Plaintiff’s counsel receives attorney fees
under both 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 Weakley v. Bowen, 803 F.2d 575,
580 (10th Cir. 1986).

_________________________________
THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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