Cain v. Social Security Administration

Filing 28

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 23 Motion for Attorney Fees and granting 26 Supplemental Motion for Attorney Fees. (sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KATHY R. CAIN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-14-057-KEW

OPINION AND ORDER
This matter comes before the Court on Claimant’s Motion for
Award of Attorney Fees Pursuant to the Equal Access to Justice Act
(Docket Entry #23) and Claimant’s Supplemental Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #26).

By Order and Opinion entered March 30, 2015, this

Court reversed the decision of the Commissioner to deny Claimant’s
application for supplemental security income under Title XVI of the
Social Security Act and remanded the case for further proceedings.
In the Motion, Claimant seeks attorney’s fees for 30.90 hours
of time expended by her attorney at the stipulated fee rate for a
total request of $5,868.40 under the authority of the Equal Access
to Justice Act (“EAJA”).

Because Claimant filed a reply to the

first Motion, she filed a supplemental fee motion seeking an
additional $526.40 for 2.80 hours expended in preparing the reply.
The Commissioner contests the award of EAJA fees, contending her
position in the underlying case was substantially justified.
EAJA provides that a prevailing party other than the United

States shall be awarded fees and costs unless the court finds the
position of the United States was substantially justified or that
special

circumstances

2412(d)(1)(A).

With

make

an

respect

award

to

unjust.

EAJA

28

applications

U.S.C.
in

§

Social

Security cases, Defendant has the burden of showing that her
position was substantially justified.
1266, 1267 (10th Cir. 1988).

Hadden v. Bowen, 851 F.2d

Defendant must prove that, even if

her position is incorrect, her case had a reasonable basis in law
and

in

fact.

Id.

To

establish

substantial

justification,

Defendant must show that there is a genuine dispute and that
reasonable people could differ concerning the propriety of a
particular agency action.

Pierce v. Underwood, 487 U.S. 552, 565

(1987). The government’s “position can be justified even though it
is not correct . . . and it can be substantially (i.e., for the
most part) justified if a reasonable person could think it correct
. . .”

Id. at 566 n.2.

Clearly,

Claimant

constituted

the

accordance with this Court’s decision.

prevailing

party

in

The Commissioner contends

that the ALJ reasonably evaluated the opinion of Dr. Douglas Nolan.
The ALJ gave no weight to Dr. Nolan’s opinion because he found him
to be a non-acceptable medical source.

This Court determined that

the ALJ erred by failing to explain the basis for his finding when
the

evidence

of

record

indicated

Dr.

Nolan

was

not

only

acceptable medical source but also a treating physician.

an

This

Court remanded the case for the ALJ to perform the appropriate

2

analysis of this physician’s opinion.

Defendant now states that

ALJ’s findings were reasonable and the position taken by Defendant
in this review was substantially justified.

However, the bases

provided for the “reasonable” consideration of Dr. Nolan’s opinion
were not contained in the ALJ’s decision but rather only appeared
for the first time in Defendant’s briefing on appeal.

Defendant

cannot bolster the ALJ’s decision by making post hoc arguments on
appeal.

The fact remains that the ALJ must make the findings in

his decision.

Franz v. Astrue, 509 F.3d 1299, 1302 (10th Cir.

2007). Consequently, this Court cannot conclude the position taken
by Defendant was substantially justified.
IT IS THEREFORE ORDERED that Claimant’s Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry

#23)

and

Claimant’s

Supplemental

Motion

for

Award

of

Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #26) are GRANTED and that the Government be ordered to pay
Claimant’s attorney’s fees in the total amount of $6,394.80.

In

accordance with the ruling of the Tenth Circuit Court of Appeals,
the award shall be made to Plaintiff as the prevailing party and
not directly to Plaintiff’s counsel.

Manning v. Astrue, 510 F.3d

1246, 1255 (10th Cir. 2007); 28 U.S.C. § 2412(b).

In addition,

should Plaintiff’s counsel ultimately be awarded attorney’s fees
pursuant to 42 U.S.C. § 406(b)(1), counsel shall refund the smaller
amount to Plaintiff.

Weakley v. Bowen, 803 F.2d 575, 580 (10th

Cir. 1986).

3

IT IS SO ORDERED this 3rd day of May, 2016.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

4