Wickson v. Social Security Administration

Filing 28

OPINION & ORDER by Magistrate Judge Kimberly E. West granting 23 Motion for Attorney Fees; and granting 27 Supplemental Motion for Attorney Fees. (sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
DAVID D. WICKSON,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-15-253-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 #23).

By Order and Opinion entered September 8, 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 36.40 hours
of time expended by his attorney at the stipulated fee rate for a
total request of $6,327.00 under the authority of the Equal Access
to Justice Act (“EAJA”).

This request reflects a voluntary

reduction of the fee by $950.00.

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, she filed a
Supplemental Application for Attorney Fees to include $874.00 to
research and prepare the reply brief, also reflecting a voluntary

reduction of the fee requested.

The Commissioner did not respond

to the Supplemental Application.
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

accordance with this Court’s decision.

the

prevailing

party

in

The Commissioner contends

that the ALJ was reasonable in finding Claimant did not meet
Listing 12.05C - the single issue for which the ALJ’s decision was
reversed and the case was remanded for further consideration. This
Court documented the fallacies in the ALJ’s position taken in the

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decision, including drawing medical conclusions which found no
support in the medical record and accepting full scale IQ findings
not supported by objective testing.

This Court cannot conclude

that the ALJ’s conclusions are substantially justified under the
circumstances of this case.
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 #23)
and Claimant’s Supplemental Application for Attorney Fees (Docket
Entry #27) are hereby GRANTED and that the Government be ordered to
pay Claimant’s attorney’s fees in the total amount of $7,201.00.
In accordance the ruling of the Tenth Circuit Court of
Appeals, the award with 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 23rd day of January, 2017.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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