Butler v. Social Security Administration
Filing
23
OPINION AND ORDER Awarding Attorneys' Fees to the Plaintiff Under the EAJA by Magistrate Judge Steven P. Shreder GRANTING 19 Motion for Attorney Fees by Gary L. Butler.(ndd, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
GARY L. BUTLER,
)
)
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-14-254-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 a total of attorney’s fees in the amount of $4,522.00 and costs in the amount of
$400.00, under the Equal Access to Justice Act (the “EAJA”), 28 U.S.C. § 2412. See
Plaintiff’s Application for an Award of Attorneys’ Fees Under the Equal Access to
Justice Act and Motion for Award of Court Costs [Docket No. 19]. The Commissioner
objects to the award of fees 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 fees
under the EAJA as the prevailing party herein.
On appeal, the Plaintiff asserted two arguments, including an argument that the
ALJ failed to elicit information from the testifying vocational expert (VE) with regard to
a conflict between the VE’s testimony and the Dictionary of Occupational Titles. This
Court reversed, finding that the ALJ did fail to properly resolve the conflicts as to the
vocational expert’s testimony. See Docket No. 17. The Commissioner’s response to the
Plaintiff’s present EAJA fees motion asserts that her position on appeal was reasonable
even if wrong. 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 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.”). “In other words, 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. In this case, the Court found that the ALJ failed to resolve conflicts
regarding the reaching requirements of each job identified. The Commissioner argues
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that the social security regulations do not impose the “independent duty” on the ALJ to
search conflicts, ignoring Tenth Circuit case law that does. See, e. g., Haddock v. Apfel,
196 F.3d 1084,1091 (10th Cir. 1999). Inasmuch as it was the ALJ’s obligation to
perform this analysis at the administrative level, it is difficult to see how anything said on
appeal could justify the ALJ’s failures at that level in this case. See, e. g., Clifton v.
Chater, 79 F.3d 1007, 1009 (10th Cir. 1996) (“In the absence of ALJ findings supported
by specific weighing of the evidence, we cannot assess whether relevant evidence
adequately supports the ALJ’s conclusion[.]”). See also Hackett v. Barnhart, 475 F.3d
1166, 1174 (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); Drapeau v. Massanari, 255 F.3d 1211, 1214 (10th Cir. 2001)
(“Although we review the ALJ’s decision for substantial evidence, ‘we are not in a
position to draw factual conclusions on behalf of the ALJ.’”), quoting Prince v. Sullivan,
933 F.2d 598, 603 (7th Cir. 1991).
The Court therefore concludes that the Plaintiff should be awarded attorney’s fees
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.”).
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Accordingly, IT IS ORDERED that the Plaintiff’s Application for an Award of
Attorneys’ Fees Under the Equal Access to Justice Act and Motion for Award of Court
Costs [Docket No. 19] for fees in the amount of $4,522.00 and costs in the amount of
$400.00 is hereby GRANTED and that the Government is hereby ordered to pay
attorney’s fees 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 27th day of July, 2016.
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