Kelley v. Social Security Administration
Filing
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OPINION & ORDER by Magistrate Judge Kimberly E. West granting 31 Motion for Attorney Fees; granting 34 Supplemental Motion for Attorney Fees. (sjr, Chambers)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
RANDY D. KELLEY,
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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.
Case No. CIV-14-429-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 #31).
By Order and Opinion entered March 29, 2016, this
Court reversed the decision of the Commissioner to deny Claimant’s
applications for disability insurance benefits under Title II 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 36.50 hours
of time expended by his attorney at the stipulated fee rate for a
total request of $6,241.50 under the authority of the Equal Access
to Justice Act (“EAJA”), which reflects a voluntary ten percent
reduction in the fee request.
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 18.60 hours of
legal time or $3,420.00.
However, Claimant reduces the request by
half to $1,710.00.
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. Vaught’s restrictions in his RFC
assessment or hypothetical questioning of the vocational expert
which ultimately affected his findings at steps four and five. The
ALJ’s decision was also reversed for failing to provide sufficient
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affirmative links in the evidence and the ALJ’s discounting of
Claimant’s
credibility,
consideration
of
lay
testimony,
and
obtaining medical records to fulfill his obligation to develop the
record.
Nothing in the Commissioner’s objections to the EAJA fee
application would render these omissions “substantially justified.”
Since the Commissioner did not object to the reasonableness of
the
supplemental
fee
request,
the
additional
fees
for
the
preparation of Claimant’s reply will be awarded.
IT IS THEREFORE ORDERED that Claimant’s Motion for Attorney
Fees Pursuant to the Equal Access to Justice Act (Docket Entry #31)
and Claimant’s Supplemental Motion for Attorney Fees (Docket Entry
#34) are hereby GRANTED and that the Government be ordered to pay
Claimant’s attorney’s fees in the total amount of $7,951.50.
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.
Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir. 1986).
IT IS SO ORDERED this 21st day of November, 2016.
______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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