Newton v. Social Security Administration
Filing
27
OPINION AND ORDER Awarding Attorneys' Fees to the Plaintiff Under the EAJA by Magistrate Judge Steven P. Shreder GRANTING 23 Motion for Attorney Fees by Pamela D. Newton. (ndd, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
PAMELA D. NEWTON,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)
Case No. CIV-14-469-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 a total of attorney’s fees in the amount of $5,263.00, 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 [Docket No. 23].
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 erred at step four in finding the Plaintiff could perform her past relevant work. This
Court reversed, finding that the ALJ did fail to perform the properly analysis at step four.
See Docket No. 21. 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 1258. In this case, the
Court found that the ALJ failed to properly inquire as to the demands of the Plaintiff’s
past relevant work and failed to make the requisite factual findings, which resulted in an
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improper delegation of his fact-finding responsibilities. The Commissioner argues that
“reasonable minds” could differ as to this Court’s reliance on an unpublished Tenth
Circuit opinion, Sissom v. Colvin, 512 Fed. Appx. 762, 769-770 (10th Cir. 2013), but the
Plaintiff correctly notes that this Court did not rely on Sissom but rather favorably cited it
as correctly applying Tenth Circuit precedent under Frantz v. Astrue, 509 F.3d 1299,
1304 (10th Cir. 2007), and Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir. 1996), as
applied to the facts of this case. Inasmuch as it was the ALJ’s obligation to provide a
reasonable basis at the administrative level, it is difficult to see how anything said on
appeal could justify the ALJ’s failures at that 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
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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.”).
The Commissioner cites a Sixth Circuit case for the
proposition that “in the vast majority of cases, a position defending a final administrative
decision despite its imperfections will be justified.” DeLong v. Commissioner of Social
Security Administration, 748 F.3d 723, 728 (6th Cir. 2014). Even aside from the purely
persuasive authority and dicta from which this citation arrives, the Court notes that
further scrutiny even in that Circuit has resulted in disavowing this statement: “In reality,
both published and unpublished case law strongly supports a contrary inference that in
the vast majority of social security cases, EAJA fees are awarded whenever a plaintiff
wins remand.” Stacy v. Commissioner of Social Security, 2016 WL 3079130, at *4 (S.D.
Ohio May 5, 2016), citing Glenn v. Commissioner of Social Security, 763 F.3d 494 (6th
Cir. 2014).
Accordingly, IT IS ORDERED that the Plaintiff’s Application for an Award of
Attorneys’ Fees Under the Equal Access to Justice Act [Docket No. 23] in the amount of
$5,263.00 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).
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IT IS SO ORDERED this 27th day of July, 2016.
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