Davenport v. Social Security Administration
Filing
36
AMENDED OPINION AND ORDER by Magistrate Judge Kimberly E. West granting attorney fees.(sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
WENDY R. DAVENPORT,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
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Case No. CIV-14-132-KEW
AMENDED
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 #26) and Claimant’s Supplemental Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #29).
By Order and Opinion entered September 28, 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.
This Amended Opinion and Order is entered to
reflect the voluntary reduction in the fee requested which was not
incorporated in the original Opinion and Order.
In the Motion, Claimant seeks attorney’s fees for 37.70 hours
of time expended by her attorney at the stipulated fee rate for a
total request of $6,852.40 under the authority of the Equal Access
to Justice Act (“EAJA”).
However, Claimant’s attorney voluntarily
reduced his billing by 10% to a requested total of $6,167.16.
Because
Claimant
filed
a
reply
to
the
Motion,
she
filed
a
supplemental fee motion seeking an additional $977.60 for 5.20
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
accordance with this Court’s decision.
the
prevailing
party
in
The Commissioner contends
that the ALJ’s failure to make a finding as to whether Claimant was
2
prescribed and required the use of a cane was harmless error. This
Court determined that the Commissioner attempted to add to the
ALJ’s findings in order to justify his RFC conclusions, which were
wholly dependent upon whether Claimant was prescribed and required
to use a cane.
Given the actual findings of the ALJ in his
decision, this Court cannot conclude that the position taken by the
Commissioner in this review 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
#30)
and
Claimant’s
Supplemental
Motion
for
Award
of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #33) are GRANTED and that the Government be ordered to pay
Claimant’s attorney’s fees in the total amount of $7,144.76.
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).
IT IS SO ORDERED this 11th day of April, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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