Penny v. Social Security Administration
Filing
25
OPINION AND ORDER by Magistrate Judge Steven P. Shreder GRANTING 21 Motion for Attorney Fees by Tina L. Penny. (ndd, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
TINA L. PENNY,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)
Case No. CIV-14-525-SPS
OPINION AND ORDER
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 attorney’s fees and costs in the amount of $5,016.00 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. 21].1
The
Commissioner objects and urges the Court to deny the request. For the reasons set forth
below, the Court agrees with the Commissioner and finds that fees under the EAJA
should not be awarded in this case.
Under 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
1
The Court notes that the Plaintiff has also requested an additional $627.00 in his Reply Brief,
but finds that such a request is not properly before the Court at this time. See Loc. Civ. R. 7.1(c)
(“Each motion, application, or objection filed shall be a separate pleading[.]”).
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.
On appeal, the Plaintiff raised several arguments, including an argument that the
ALJ failed to properly account for her severe mental impairments at step four. This
Court agreed with that argument, and pointed out additional errors in this regard that
ought to also be addressed on remand. The Commissioner asserts that her position on
appeal was substantially justified and restates her earlier arguments in support. 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
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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.”).
Accordingly, IT IS ORDERED that the Plaintiff’s Application for an Award of
Attorneys’ Fees Under the Equal Access to Justice Act [Docket No. 21] in the amount of
$5,016.00 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
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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 1st day of July, 2016.
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