Lobato v. Social Security Administration

Filing 29

ORDER by Magistrate Judge Kevin R. Sweazea granting in part and deferring in part 24 Plaintiff's Motion for Attorney Fees. For the reasons stated in the order, the Court grants Plaintiff's general request for EAJA fees but defers ruling on the amount of fees to be awarded pending further briefing. (sls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LESLEE MARIE LOBATO
Plaintiff,
v.

No. 1:17-cv-907-KRS

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
ORDER GRANTING IN PART AND DEFERRING IN PART PLAINTIFF’S MOTION
FOR ATTORNEY FEES
THIS MATTER comes before the Court upon Plaintiff’s Opposed Motion for Attorney
Fees Pursuant to the Equal Access to Justice Act (“EAJA”) (Doc. 24), filed February 13, 2019.
Having considered the motion, Defendant’s response in opposition (Doc. 26), filed February 26,
2019, and Plaintiff’s reply (Doc. 27), filed March 12, 2019, the Court FINDS that Plaintiff’s
motion should be granted in part as set forth below.
On November 15, 2018, the Court entered an Opinion and Order Granting in Part
Plaintiff’s Motion to Reverse and Remand (Doc. 22). As set forth in its order, the Court
determined that the ALJ erred in her consideration of opinion evidence provided by two of
Plaintiff’s treating physicians, to wit: Dr. Marren and Dr. Sievert. More Specifically, the Court
noted that Dr. Marren assessed Plaintiff with upper extremity limitations based, inter alia, on
Plaintiff’s MRI results. (Doc. 22, p. 5, AR 1866). Inexplicably, however, the ALJ opined that
Plaintiff’s MRI was, for the most part, “unremarkable” and determined that Dr. Marren’s
findings were inconsistent with the “modest radiological findings and [the doctor’s] established

history of benign treatment notes.” (AR 615). Dr. Sievert, in turn, found that Plaintiff’s bipolar
disorder resulted in numerous limitations. (AR 1757-58). To support his findings, Dr. Sievert
explained that, although Plaintiff’s disorder had improved, it was “not fully in remission” and
resulted in impaired functioning. (AR 1757). Yet, in assigning limited weight to Dr. Sievert’s
opinion, the ALJ completely ignored the doctor’s explanation for his findings.1 (AR 617).
Due to these errors, the Court could not find that the Commissioner applied the correct
legal standards in reaching her decision to deny Plaintiff’s request for disability benefits, or that
the decision was supported by substantial evidence. Accordingly, the Court remanded the case
for further proceedings.
As the prevailing party in the civil action, Plaintiff filed the instant motion requesting
EAJA fees in the amount of $ 6,889.50. (Doc. 24, p. 1). Defendant, however, asks the Court to
deny Plaintiff’s motion arguing, in sum, that the Commissioner’s position, both in the agency
action and the subsequent civil action, was substantially justified. The Court disagrees with
Defendant’s contention.
Plaintiff is entitled to recover attorney fees under the EAJA unless the Court determines
that the Commissioner’s position was substantially justified. 28 U.S.C. § 2412(d)(1)(A).
Importantly, for the purposes of the EAJA, the term “position” encompasses the position taken
by the Commissioner in both the civil action and the underlying agency action. 28 U.S.C. §
2412(d)(2)(D). The Court, then, is required to make its determination on the basis of the entire
record, “including the record with respect to the action or failure to act by the agency upon which
the civil action is based.” 28 U.S.C. § 2412(d)(1)(B). “The test for substantial justification in

In her decision, the ALJ states that Dr. Sievert identified limitations “for a reason that is illegible.” (AR 617).
While Dr. Sievert has the quintessential “doctor’s handwriting,” his comments were, in fact, legible as the Court was
able to read and discern the doctor’s explanation. The ALJ’s finding to the contrary again demonstrates that she was
not concerned with Dr. Sievert’s supporting evidence.
1

this circuit is one of reasonableness in law and fact,” Hackett v. Barnhart, 475 F.3d 1166, 1172
(10th Cir. 2007) (quotation omitted), and the burden is on the Commissioner to show that her
position meets this standard. Id. at 1173.
In the case at bar, Defendant asks the Court to find that “a reasonable person could
conclude that the ALJ provided good reasons for discounting Dr. Marren’s and Dr. Sievert’s
opinions.” (Doc. 26, p. 5). In support, Defendant notes, “[i]ndeed, the Court stated in the Order,
that ‘[a]t face value, the ALJ’s findings in terms of the consistency and supportability of the
evidence may appear to be sufficient reasons to discount the doctors’ opinions.’” (Id.).
Defendant continues her argument with a discussion of evidence which allegedly supports the
ALJ’s rejection of the opinions in question.
Here, Defendant references evidence upon which the ALJ actually relied, evidence to
which she cited, post hoc, in her response to Plaintiff’s request for remand, and evidence which
she admittedly did not raise during the civil litigation. Defendant concludes that she “reasonably
took the position that the ALJ reasonably gave no weight to Dr. Marren’s opinion based on the
modest MRI findings and Dr. Marren’s benign treatment records,” (Id.), and that she “had a
reasonable basis for defense of the ALJ’s decision based on the ALJ’s regulatory-based
discussion of Dr. Sievert’s opinion in comparison to his treatment notes.” (Id., p. 7).
As an initial matter, the Court employed the “at face value” statement to which
Defendant refers to demonstrate that the ALJ’s consideration of Dr. Marren’s and Dr. Sievert’s
opinions was one of form over substance. The ALJ used words and phrases that one might
associate with a 20 C.F.R. § 404.1527(c) evidence evaluation viz., “inconsistent,” “contrary to,”
“at odds with,” (AR 615, 617), but her evaluation excluded and/or mischaracterized significant
probative evidence provided by Plaintiff’s treating physicians. (Doc. 22, pp. 5-7). And, because

the ALJ’s decision is the Commissioner’s “position” in terms of the agency action, the Court
finds that the ALJ’s evidentiary errors do “not meet the reasonableness test for substantial
justification.” Hackett, 475 F.3d 1166, 1175 (10th Cir. 2007).
Of course, this finding does not resolve the matter as the Court still must consider
whether the Commissioner’s litigation position was substantially justified. See, e.g., Madron v.
Astrue, 646 F.3d 1255, 1258 (10th Cir. 2011) (explaining that “it does not necessarily follow
from our decision vacating an administrative decision that the government's efforts to defend that
decision lacked substantial justification.”). Having so considered, the Court finds that the
Commissioner has not met her burden of proving that her position was reasonable in fact and
law.
As discussed above, Defendant asks the Court to find that she had a “reasonable basis”
for concluding that the ALJ “reasonably” rejected the opinion evidence in question. First and
foremost, the question before the Court is whether the Commissioner’s litigation position was
reasonable in fact and law, and not simply whether it was “reasonable” for the Commissioner to
believe that the ALJ acted “reasonably.” Secondly, if the ALJ’s consideration of the evidence in
question could be considered reasonable, the Court would be without authority to remand the
matter back to the Commissioner. See, e.g., Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir.
2016) (limiting judicial review to a determination of “whether substantial evidence supports the
factual findings and whether the ALJ applied the correct legal standards”); Glass v. Shalala, 43
F.3d 1392, 1395 (10th Cir. 1994) (explaining that the Court may not reweigh the evidence or
substitute its judgment for that of the ALJ).
It was neither factually nor legally reasonable for the Commissioner to conclude that the
ALJ “reasonably” used Plaintiff’s MRI results to discount Dr. Marren’s findings or that the ALJ

properly considered Dr. Sievert’s opinion evidence. And, the Commissioner’s proffer of
evidence which she believes supports the ALJ’s decision does nothing to address or defend the
ALJ’s failure to consider properly the probative evidence which supports Dr. Marren’s and Dr.
Sievert’s findings. See Hackett, 475 F.3d 1166, 1174-75 (10th Cir. 2007).2
In the alternative, the Commissioner asks the Court to reduce Plaintiff’s requested fee
amount by $923.80, arguing that Plaintiff’s attorney overbilled by $119.80 for clerical work, and
improperly billed for $804.00 of work that he completed during Plaintiff’s first appeal. Upon
review of Michael Armstrong’s Affidavit (Doc. 24-1), the Court is unable to determine whether
Mr. Armstrong’s fee request of $6,889.503 is reasonable.
At the outset, the Court finds that Defendant’s argument as to Plaintiff’s billing for
duplicative work is without merit. The fact that Plaintiff was represented by Mr. Armstrong’s
firm4 in her 2014 appeal did not relieve Mr. Armstrong of his obligations in this case to ensure
that he was thoroughly versed in the administrative record and that he was presenting accurately
the associated facts and relevant law. To the contrary, the Court would find cause for concern if
an attorney relied solely upon the work product submitted on behalf of his firm three years prior.
In terms of the alleged overbilling of clerical work, Defendant points to three of Mr.
Armstrong’s block activity entries which include the term “filing.” Defendant argues that this
clerical task may not be recovered under the EAJA, and Plaintiff does not address this argument
2

In Hackett, 475 F.3d 1166 (10th Cir. 2007), the Court contrasted situations in which a factual matter was at issue
and the Commissioner supplied a missing dispositive finding during litigation, with those in which the
Commissioner attempted to reconcile the ALJ’s decision with new evidence or legal theories. Id. at 1174-75. The
Court suggested that the former might give way to a finding of substantial justification while the latter would likely
foreclose such a finding. Id.
3
The EAJA limits an attorney’s fee award to $125.00 per hour “unless the court determines that an increase in the
cost of living or a special factor…justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). Plaintiff has requested an
hourly rate of $197.00 for work performed in 2017, and $201.00 for work performed in 2018. (Doc. 24-1, p. 2).
Defendant does not dispute that Plaintiff is entitled to the requested upward adjustment and the Court finds that
these rates are justified as they reasonably reflect cost of living adjustments based on the Consumer Price Index.
4
Francesca MacDowell submitted the 2014 Motion to Reverse and Remand on behalf of the Michael Armstrong
Law Office in 1:14-cv-00281-SMV.

in her reply. The Court agrees that purely clerical tasks may not be billed at an attorney’s hourly
rate. See 28 U.S.C. § 2412(d)(2)(A) (“The amount of fees awarded under this subsection shall be
based upon prevailing market rates for the kind and quality of the services furnished”). Plaintiff,
then, shall disclose the amount of time, if any, Mr. Armstrong allotted to the filing of documents
in his time entries for August 18, 2017, February 13, 2018, and March 30, 2018, and either
explain why the filing activities she identified are not clerical tasks or remove these activities
from her time computations.
More puzzling to the Court, however, is Mr. Armstrong’s activity entry dated August
18, 2017, which states: “Meeting w/Client. Review ALJ Decision & Appeals Council Denial,
Federal Court Filing.” (Doc. 24-1, p. 2). The first filing in this case was submitted on
September 1, 2017 (Doc. 1), and there is no record of a denial from the Appeals Council in the
underlying agency action.5 See Doc. 11. Consequently, this entry appears to be inaccurate and
clarification is required to determine whether the corresponding 1.20 time entry should be
omitted entirely or applied to different activities/dates.
It is worth mention that, in her reply, Plaintiff requests an additional $505.00 for the time
she spent preparing the reply. (Doc. 27, pp. 5-6). Due to the discrepancies in Mr. Armstrong’s
Affidavit, the Court finds that Plaintiff is not entitled to fees associated with defending her EAJA
motion. See, e.g., Commissioner, I.N.S. v. Jean, 496 U.S. 154, 165 (1990) (explaining that the
EAJA was intended to “cover the cost of all phases of successful civil litigation” and that the
district courts are vested with the discretion to adjust the amount of fees as appropriate).
THEREFORE, the Court FINDS and CONCLUDES:
1. The Commissioner’s position was not substantially justified and Plaintiff is entitled to an

5

As this case has its inception in a remand by a Federal Court, Plaintiff was not required to file objections with the
Appeals Council following the ALJ’s denial of benefits. 20 C.F.R. § 404.984.

award of EAJA fees.
2. Plaintiff’s EAJA award should not be reduced due to work Mr. Armstrong or his firm
completed in Plaintiff’s prior appeal.
3. Plaintiff is not entitled to fees associated with the clerical task of filing.
4. Plaintiff is not entitled to any expenses associated with her motion for EAJA fees.
5. Mr. Armstrong shall submit an accurate affidavit along with a motion which thoroughly
explains the discrepancies noted above and provides a precise accounting of, and request
for, legal fees to which he believes he is entitled. Plaintiff shall file the affidavit and
motion on or before April 15, 2019. Defendant shall file a response either objecting to
Plaintiff’s calculation of fees or stating that she takes no position on or before April 25,
2019. If Defendant objects to Plaintiff’s motion, Plaintiff shall file a reply on or before
May 3, 2019.
6. The Court defers ruling on the amount of EAJA fees to be awarded pending the
completion of the parties’ above-directed briefing.
IT IS SO ORDERED.

KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE