Cox-Williams v. Social Security Administration

Filing 28

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 25 Motion for Attorney Fees. (sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TRACY RANDELL COX-WILLIAMS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-14-089-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 #25).

By Order and Opinion entered September 24,

2015, this Court reversed the decision of the Commissioner to deny
Claimant’s

applications for disability insurance benefits under

Title II of the Social Security Act and 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 26.40 hours
of time expended by her attorney at the stipulated fee rate for a
total request of $5,013.20 under the authority of the Equal Access
to Justice Act (“EAJA”).

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).

make

With

an

respect

award

to

unjust.

EAJA

28

applications

U.S.C.
in

§

Social

Security cases, Defendant has the burden of showing that her
Hadden v. Bowen, 851 F.2d

position was substantially justified.
1266, 1267 (10th Cir. 1988).

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 (1) the adoption of the opinion of the vocational expert was
reasonable despite deviating from the Dictionary of Occupational
Titles (“DOT”); (2) the ALJ’s weighing of Dr. Hobbs’ opinion was
reasonable;

and

(3)

the

ALJ’s

credibility

determination

was

supported and reasonable despite not considering the third party
statements

concerning

Claimant’s

ability

to

engage

in

daily

activities.
Defendant

appears

to

argue

that

once

the

ALJ

asks

the

vocational expert if his testimony conflicts with the DOT, his

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obligation is concluded.

An ALJ’s responsibility to investigate

any discrepancies between the vocational expert’s testimony and the
DOT remains.
1999).

Haddock v. Apfel, 196 F.3d 1084, 1091 (10th Cir.

Should the ALJ choose to rely upon the vocational expert’s

testimony without further investigation or inquiry, he does so at
his peril. The vocational expert’s testimony deviated from the DOT
and the ALJ did not fulfill his obligation to investigate.
As for the ALJ’s consideration of Dr. Hobbs’ opinion, the fact
remains that the ALJ rejected the vast majority of Dr. Hobbs’
statements but yet gave the opinion “partial weight.”

The ALJ did

not explain which part of this treating physician’s opinion to
which he gave weight.

The ALJ also demanded a level of detail from

the forms provided to Dr. Hobbs which is never present.
The

remand

on

credibility

was

based

upon

the

ordered

reconsideration of the objective medical evidence from third party
statements and Dr. Hobbs.
he

may

be

forced

to

Once the ALJ reexamines this evidence,

review

his

findings

on

credibility

and

assessment that Claimant’s subjective statements were not supported
by objective medical evidence.
conclude

that

Defendant’s

Consequently, this Court cannot

position

taken

in

this

action

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 #25) is hereby GRANTED and that the Government be ordered to
pay Claimant’s attorney’s fees in the total amount of $5,013.20.

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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).
addition,

should

Plaintiff’s

counsel

ultimately

be

In

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

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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