Cook 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 Devin J. Cook. (ndd, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DEVIN J. COOK,
)
)
Plaintiff,
)
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v.
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)
CAROLYN W. COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)
Case No. CIV-14-392-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.
He seeks a total of attorney’s fees in the amount of $5,206.00 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 a number of conflicts as
to the vocational testimony. See Docket No. 17. The Commissioner’s response to the
Plaintiff’s present 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, and essentially restates the arguments contained in her 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 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
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1258. In this case, the Court found that the ALJ failed to resolve conflicts with each of
the jobs identified at step five. 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).
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 in the amount of $5,206.00 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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