Gilbert 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 22 Motion for Attorney Fees by Stuart John Gilbert. (tls, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
STUART JOHN GILBERT,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the Social )
Security Administration,
)
)
Defendant.
)
Case No. CIV-15-228-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 $4,047.00, under the Equal Access to
Justice Act (the “EAJA”), 28 U.S.C. § 2412. See Plaintiff’s Motion and Brief in Support
for an Award of Attorney’s Fees Under the Equal Access to Justice Act 28 U.S.C. § 2412
[Docket No. 22]. 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 and costs under the EAJA as the prevailing party
herein.
On appeal, the Plaintiff asserted arguments related to the ALJ’s step-four analysis,
including a consultative examination related to his mental impairments.
The
Commissioner’s response asserts that her position was substantially justified because the
arguments made before this Court were plausible and reasonable in fact and law, essentially
restating the arguments made in the Response Brief and challenging this Court’s findings.
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 Court
disagrees with the Commissioner’s arguments and position.
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.”). The Commissioner’s argument is that the ALJ’s error
was in failing to sufficiently explain his reasoning as to the consultative examiner’s
opinion. This reasoning ignores and further crystallizes the underlying problem that the
ALJ engaged in improper picking and choosing. Furthermore, although the Commissioner
may have provided some reasonable post hoc bases for the ALJ’s findings, the ALJ did not
do so in the first instance. Inasmuch as it was the ALJ’s obligation to provide such a
reasonable basis, 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
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whether relevant evidence adequately supports the ALJ’s conclusion[.]”).
See also
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), it is difficult to see how anything said on appeal could justify the ALJ’s failure
to do so. See 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).
Accordingly, IT IS ORDERED that the Plaintiff’s Motion and Brief in Support for
an Award of Attorney’s Fees Under the Equal Access to Justice Act 28 U.S.C. § 2412
[Docket No. 22] is hereby GRANTED and that the Government is hereby ordered to pay
attorney’s fees in the amount of $4,047.00 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 8th day of December, 2016.
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