Bailey v. Social Security Administration

Filing 31

OPINION AND ORDER Awarding Attorneys' Fees to the Plaintiff under the EAJA by Magistrate Judge Steven P. Shreder GRANTING 27 Motion for Attorney Fees by Mary A. Bailey. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
MARY A. BAILEY,

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

Case No. CIV-14-389-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 an award of attorney’s fees in the amount of $6,575.40 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. 27]. 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 sole contention of error is that the ALJ failed to
evaluate the evidence from related to two “other source” opinions in the record. This
Court reversed, finding that the ALJ did fail to properly conduct an evaluation regarding

the evidence in the record. See Docket No. 25. Furthermore, this Court noted that this
case had been pending for eleven years, four alone where the case sat before the Appeals
Council, and reserved the right to remand with an award instruction in any future appeal.
The Commissioner’s response to the EAJA fees motion asserts that her position on
appeal was substantially justified because “reasonable minds could differ” as to whether
the ALJ performed the proper analysis. 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
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justification.” Madron, 646 F.3d at 1258. In this case, the Court found that the ALJ
failed apply any sort of analysis to a consultative examiner’s opinion, and further failed
to apply the proper “other source” analysis to the two of the claimant’s counselors who
had a treating relationship with the claimant. The Court noted that the ALJ had adopted
an opinion that ignored the consultative exam findings and pre-dated the “other source”
opinions. Although the Commissioner describes these failures as a discussion that “fell
somewhat short” in express discussion but should be deemed sufficient, this Court
actually found that the ALJ engaged in improper picking and choosing and wholly failed
to conduct the requisite analysis under the regulations, even after eleven years. Inasmuch
as it was the ALJ’s obligation to provide such a reasonable basis it is difficult to see how
anything said on appeal could justify the ALJ’s failures at the administrative 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).

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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.”).
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. 27] for fees in the amount of $6,575.40 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 22nd day of December, 2016.

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