Foster v. Social Security Administration

Filing 36

OPINION AND ORDER by Magistrate Judge Steven P. Shreder DENYING 30 Motion for Attorney Fees Pursuant to the Equal Access to Justice Act by Loresa S. Foster. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
LORESA S. FOSTER,

)
)
Plaintiff,
)
)
v.
)
)
NANCY A. BERRYHILL,
)
Acting Commissioner of the Social )
Security Administration,1
)
)
Defendant.
)

Case No. CIV-15-379-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.
He seeks attorney’s fees and costs in the amount of $8,348.90 under the Equal Access to
Justice Act (the “EAJA”), 28 U.S.C. § 2412. See Plaintiff’s Motion for Attorney Fees
Pursuant to the Equal Access to Justice Act [Docket No. 30]. 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

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of Social
Security. In accordance with Fed. R. Civ. P. 25(d), Ms. Berryhill is substituted for Carolyn
Colvin as the Defendant in this action.

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 asserted that the ALJ erred by failing to consider all the
evidence at steps four and five, including evidence related to episodes of decompensation
and other mental impairment evidence, failed to properly apply the Medical-Vocational
Guidelines, and improperly assessed her credibility. This Court found that the ALJ’s
opinion did not reflect how he would have evaluated the claimant’s subjective statements
under the recently-issued Soc. Sec. Rul. 16-3p, 2016 WL 1119029 (Mar. 16, 2016). The
Commissioner asserts that her position was substantially justified because:
-2-

(i) the

Plaintiff did not raise the argument regarding Soc. Sec. Rul. 16-3p and the Court even
stated that the ALJ’s analysis was “arguably sufficient under the old standard,” and (ii)
the new ruling and its effects on cases pre-dating its issuance was an unsettled question of
law, so the Commissioner’s position was substantially justified. The Court agrees with
the Commissioner and thus finds that the Commissioner’s position on appeal was
reasonable in both law and fact, and that the Commissioner’s position was therefore
substantially justified. Compare with Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161
(10th Cir. 2012) (“We will consider and discuss only those of her contentions that have
been adequately briefed for our review.”). See also Cantreras v. Barnhart, 79 Fed. Appx.
708, 709 (5th Cir. 2003) (per curiam) (“Contreras’s attorney did not brief the issue that
served as the basis for the remand and the attorney’s efforts did nothing more than to
keep Contreras’s case alive.”). Because the Commissioner’s position was substantially
justified, the Court finds that an award of attorney fees in favor of the Plaintiff is
therefore precluded.
Accordingly, IT IS ORDERED that the Plaintiff’s Motion for Attorney Fees
Pursuant to the Equal Access to Justice Act [Docket No. 30] is hereby DENIED.
IT IS SO ORDERED this 29th day of September, 2017.

-3-