Lowe v. Social Security Administration
Filing
25
OPINION AND ORDER Awarding Attorneys' Fees to the Plaintiff Under the EAJA by Magistrate Judge Steven P. Shreder GRANTING 22 Motion for Attorney Fees by Ashley Nichole Lowe. (ndd, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
ASHLEY NICOLE LOWE,
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Plaintiff,
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v.
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)
CAROLYN W. COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
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Defendant.
)
Case No. CIV-14-248-SPS
OPINION AND ORDER AWARDING
ATTORNEYS’ FEES TO THE PLAINTIFF UNDER THE EAJA
The Plaintiff was the prevailing party in this appeal of the Commissioner of the
Social Security Administration’s decision denying benefits under the Social Security Act.
She seeks attorney’s fees and costs in the amount of $6,359.00 under the Equal Access to
Justice Act (the “EAJA”), 28 U.S.C. § 2412. See Plaintiff’s Motion and Brief in Support
for an Award of Attorney’s Fees Under the Equal Access to Justice Act 28 U.S.C. § 2412
[Docket No. 22].1 The Commissioner objects and urges the Court to deny the request.
For the reasons set forth below, the Court concludes that the Plaintiff should be awarded
the requested amount of attorney’s fees under the EAJA as the prevailing party herein.
1
The Court notes that the Plaintiff has also requested an additional $601.60 in her Reply Brief,
but finds that such a request is not properly before the Court at this time. See Loc. Civ. R. 7.1(c)
(“Each motion, application, or objection filed shall be a separate pleading[.]”).
The Commissioner’s sole argument in opposition to the requested fees under the
EAJA is that the Commissioner’s position was substantially justified, and that fees should
therefore be denied. The Court disagrees.
On appeal, the Plaintiff asserted that the ALJ improperly assessed the evidence,
including her credibility, and further failed to meet his burden at step five. This Court
reversed and remanded, finding that the ALJ ignored evidence related to the claimant’s
functional limitations and failed to discuss all the evidence related to the claimant’s
impairments. The Commissioner asserts that her position was substantially justified
because the ALJ stated in his opinion that he had considered the entire record and all of
the Plaintiff’s symptoms, and that the Court should take the ALJ at his word. See 28
U.S.C. § 2412(d)(1)(A) (“[A] court shall award to a prevailing party . . . fees and other
expenses . . . unless the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust.”). “The test for substantial
justification under the EAJA, the Supreme Court has added, is simply one of
reasonableness.” Madron v. Astrue, 646 F.3d 1255, 1257-1258 (10th Cir. 2011), citing
Pierce v. Underwood, 487 U.S. 552, 563-564 (1988). In order to establish substantial
justification, the Commissioner must show that there was a reasonable basis for the
position she took not only on appeal but also in the administrative proceedings below.
See, e. g., Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir. 1992) (“We consider the
reasonableness of the position the Secretary took both in the administrative proceedings
and in the civil action Plaintiff commenced to obtain benefits.”), citing Fulton v. Heckler,
784 F.2d 348, 349 (10th Cir. 1986). See also Hackett v. Barnhart, 475 F.3d 1166, 1174
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(10th Cir. 2007) (“[W]e hold that EAJA ‘fees generally should be awarded where the
government’s underlying action was unreasonable even if the government advanced a
reasonable litigation position.’”), quoting United States v. Marolf, 277 F.3d 1156, 1159
(9th Cir. 2002); Marquez v. Colvin, 2014 WL 2050754, at *2 (D. Colo. May 16, 2014)
(“For purposes of this litigation, the Commissioner’s position is both the position it took
in the underlying administrative proceeding and in subsequent litigation defending that
position.”). Nevertheless, “it does not necessarily follow from our decision vacating an
administrative decision that the government’s efforts to defend that decision lacked
substantial justification.” Madron, 646 F.3d at 1258. Here in the Tenth Circuit, however,
the practice is to take the ALJ at his word “when the entirety of the ALJ’s discussion of
the evidence and the reasons for his conclusions demonstrate that he adequately
considered the claimant’s impairments.” Barnes v. Colvin, 2015 WL 5827687, at *5
(N.D. Okla. Oct. 6, 2015) (slip op) [emphasis added], citing Wall v. Astrue, 561 F.3d
1048, 1070 (10th Cir. 2009). Because this Court found that the ALJ did not adequately
consider the evidence or discuss the reasons for his conclusions, the Court therefore was
not required to take the ALJ at his word.
Accordingly, the Court finds that the
Commissioner’s position was not substantially justified, and that an award of fees under
the EAJA is reasonable in this case.
What matters here is that the Plaintiff was successful in obtaining a reversal of the
Commissioner’s denial of benefits on the basis of one of the propositions she advanced.
See Marquez, 2014 WL 2050754, at *2 (“Under the EAJA, ‘fees generally should be
awarded where the [Commissioner’s] underlying action was unreasonable even if the
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[Commissioner] advanced a reasonable litigation position.’”), quoting United States v.
Marolf, 277 F.3d 1156, 1159 (10th Cir. 2002). The Commissioner has not challenged the
amount of the fee request, only whether it should be awarded. The Court therefore
concludes that the Plaintiff should be awarded the requested fee as the prevailing party
under the EAJA. See, e. g., Gibson-Jones v. Apfel, 995 F. Supp. 825, 826-27 n.3 (N.D.
Ill. 1998) (holding that the Commissioner’s position was not substantially justified where
the ALJ provided an inadequate basis for denying benefits and adding: “It would be
unfair to require Ms. Gibson-Jones to appeal her denial of benefits and then not award her
attorney’s fees because the ALJ is given a second chance to support his position.”).
Accordingly, IT IS ORDERED that the Plaintiff’s Motion and Brief in Support for
an Award of Attorney’s Fees Under the Equal Access to Justice Act 28 U.S.C. § 2412
[Docket No. 22] is hereby GRANTED and that the Government is hereby ordered to pay
attorneys’ fees in the amount of $6,359.00 to the Plaintiff as the Prevailing party herein.
IT IS FURTHER ORDERED that if the Plaintiff’s attorney is subsequently awarded any
fees pursuant to 42 U.S.C. § 406(b)(1), said attorney shall refund the smaller amount of
such fees to the Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.
1986).
IT IS SO ORDERED this 3rd day of February, 2016.
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