Bales v. Social Security Administration
Filing
28
OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 22 Motion for Attorney Fees; granting 27 Motion for Attorney Fees. (sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JASON W. BALES,
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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-14-297-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 #22 and Claimant’s Supplemental Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #27).
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.
In the Motion, Claimant seeks attorney’s fees for 33.50 hours
of time expended by his attorney at the stipulated fee rate for a
total request of $6,301.60 under the authority of the Equal Access
to Justice Act (“EAJA”).
Because Claimant filed a reply to the
first Motion, he filed a supplemental fee motion seeking an
additional $1,767.20 for 9.40 hours expended in preparing the
reply.
However,
Claimant’s
attorney
voluntarily
reduced
the
request made in the Supplemental Motion by 20% to $1,413.76.
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 was not required to expressly consider the factors in
Watkins v. Barnhart, 350 F.3d 1297, 1300-01 (10th Cir. 2003) in
assessing the weight given to the opinion of a treating physician.
2
The Commissioner is correct so long as the ALJ’s reasoning in
arriving at a lesser weight is evident from the decision itself.
In this instance, the ALJ’s weight assessment was considered
arbitrary because he utilized non-standard terms in his evaluation
and the ALJ provided little in the way of an analysis or a
recitation of supportive evidence to buttress his conclusions.
Without this support, the ALJ at a minimum must proceed through the
Watkins analysis.
This omission did not substantially justify the
Commissioner’s position in this review.
The Commissioner next contends that the ALJ’s credibility
assessment
was
substantially
justified.
The
ALJ
used
the
boilerplate language which suggests that Claimant’s credibility was
not assessed until after the RFC was determined.
The Commissioner
frequently urges this Court to take the ALJ at his word that he
considered a piece of evidence even though he does not expressly
state he did so.
analysis
of
In this instance, the totality of the ALJ’s
Claimant’s
credibility
was
this
statement
which
expressly discounts any statement made by Claimant which was
inconsistent with the already determined RFC. This Court takes the
ALJ at his word that this is the manner in which he assessed
Claimant’s credibility.
justified.
The assessment was not substantially
Consequently, Plaintiff is entitled to the attorney
fees expended in the preparation of the briefing in the case and in
the filing of a reply.
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IT IS THEREFORE ORDERED that Claimant’s Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #22 and Claimant’s Supplemental Motion for Award of Attorney
Fees Pursuant to the Equal Access to Justice Act (Docket Entry #27)
are GRANTED and that the Government be ordered to pay Plaintiff’s
attorney’s fees in the total amount of $7,715.36.
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 5th day of April, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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