Brewer v. Social Security Administration
Filing
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OPINION & ORDER by Magistrate Judge Kimberly E. West granting 23 Motion for Attorney Fees; granting 28 Supplemental Motion for Attorney Fees. (sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JACK D. BREWER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
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Case No. CIV-14-375-KEW
OPINION AND ORDER
This matter comes before the Court on Claimant’s Motion for
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #23).
By Order and Opinion entered March 28, 2016, this
Court reversed the decision of the Commissioner to deny Claimant’s
application 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 32.80 hours
of time expended by his attorney at the stipulated fee rate for a
total request of $6,232.00 under the authority of the Equal Access
to Justice Act (“EAJA”).
The Commissioner contests the award of
EAJA fees, contending her position in the underlying case was
substantially justified.
Because Claimant was required to file a
reply to respond to the Commissioner’s objection, he filed a
Supplemental Motion for Attorney Fees to include 9.40 hours of
legal time and requested an additional fee of $1,786.00.
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
the
prevailing
party
in
accordance with this Court’s decision. This Court rejected many of
Claimant’s arguments on appeal but did find the ALJ failed to
consider the totality of Dr. Smith’s restrictions while affording
her opinion “significant weight.”
Additionally, the ALJ failed to
proceed through the Watkins analysis as to whether Claimant’s
treating physician’s opinion should be given controlling weight.
Nothing
in
application
the
Commissioner’s
would
Drender
objections
these
justified.”
2
to
omissions
the
EAJA
fee
“substantially
The Commissioner also objects to the reasonableness of the
fees requested in the research and preparation of Claimant’s reply
brief.
Considering the somewhat superficial content of the reply,
this Court agrees. Time in excess of 2.50 hours in the preparation
of
the
reply,
given
its
content,
is
patently
unreasonable.
Claimant’s supplemental request will be reduced accordingly.
IT IS THEREFORE ORDERED that Claimant’s Motion for Award of
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
Entry #23) is hereby GRANTED and that the Government be ordered to
pay Claimant’s attorney’s fees in the total amount of $6,232.00.
IT IS FURTHER ORDERED that Claimant’s Supplemental Motion for
Attorney Fees (Docket Entry #28) is hereby GRANTED.
However, the
fee requested is reduced to 2.50 hours for a supplemental fee of
$475.00. As a result, the Government will pay Claimant a total fee
of $6,707.00.
In accordance with the ruling of the Tenth Circuit Court of
Appeals, the award shall be made to Claimant as the prevailing
party and not directly to Claimant’s counsel.
Manning v. Astrue,
510 F.3d 1246, 1255 (10th Cir. 2007); 28 U.S.C. § 2412(b).
addition,
should
Claimant’s
counsel
ultimately
be
In
awarded
attorney’s fees pursuant to 42 U.S.C. § 406(b)(1), counsel shall
refund the smaller amount to Claimant.
575, 580 (10th Cir. 1986).
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Weakley v. Bowen, 803 F.2d
IT IS SO ORDERED this 21st day of November, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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