Newberry 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 Linda L. Newberry. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
LINDA L. NEWBERRY,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)

Case No. CIV-14-267-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 attorneys’ fees in the amount of $4,560.00 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].1 The Commissioner objects to the
award of fees and costs 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 and
costs under the EAJA as the prevailing party herein.

1

The Court notes that the Plaintiff has also requested an additional $684.00 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[.]”).

On appeal, the Plaintiff argued that the ALJ erred by improperly relying on
vocational evidence and failing to perform a proper RFC analysis, and this Court reversed
primarily on the basis of the first argument. The Commissioner’s response to the present
motion asserts that her position on appeal was substantially justified because the
arguments made before this Court were plausible and reasonable in fact and law,
essentially restating the arguments made in the Response Brief.

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 Court disagrees. 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.”).
Although the Commissioner asserts that reasonable minds could differ, this Court found
that the jobs identified by the ALJ did not conform to the prescribed RFC and that the
Court would not be adopting the Commissioner’s post-hoc rationalizations. Inasmuch as
it was the ALJ’s obligation to provide such a reasonable basis, see, e. g., Clifton v.
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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 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), it is difficult to see how
anything said on appeal could justify the ALJ’s failure to do so. See 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).
The Court therefore concludes that the Plaintiff should be awarded attorney’s fees
and costs 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 Application for an Award of
Attorneys’ Fees Under the Equal Access to Justice Act and Motion for Award of Court
Costs [Docket No. 19] is hereby GRANTED and that the Government is hereby ordered
to pay attorney’s fees in the amount of $4,560.00 and costs in the amount of $400.00 to
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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 1st day of July, 2016.

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