Matthews v. Social Security Administration

Filing 30

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

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
PATRICIA L. MATTHEWS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social
Security Administration,
Defendant.

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Case No. CIV-15-411-KEW

OPINION AND ORDER
This matter comes before the Court on Plaintiff’s Application
for Award of Attorney’s Fees Pursuant to the Equal Access to
Justice Act (Docket Entry #23) and Supplemental Application for
Award of Attorney’s Fees (Docket Entry #27).

By Order and Opinion

entered March 31, 2017, this Court reversed the decision of the
Commissioner

to

deny

Plaintiff’s

applications

for

disability

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 original Application, Plaintiff seeks attorney’s fees
for 21.00 hours of time expended by her attorney at the stipulated
fee rate and 1.30 hours of paralegal time for a total request of
$4,179.70 under the authority of the Equal Access to Justice Act
(“EAJA”).

In the Supplemental Application, Plaintiff requests an

additional $877.50 to compensate for the preparation of the reply
and the Supplemental Application for an increased total request of
$5,057.20.

The Commissioner contests the award of EAJA fees,

contending her position in the underlying case was substantially
justified.
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,

Plaintiff

constituted

accordance with this Court’s decision.

the

prevailing

party

in

The Commissioner contends

her position taken in this appeal was substantially justified
because a consultative examination is never required and that this
Court relied upon a prior version of the regulations in finding
otherwise and the Court imposed a “novel obligation” upon the ALJ

2

in

requiring

a

further

consultative

examination

when

such

examinations had been ordered by the ALJ but Plaintiff failed to
appear.
Defendant misquotes the applicable regulation concerning the
circumstances where a consultative examination is required.

The

regulations enumerate “[s]ituations that may require a consultative
examination.”

20 C.F.R. § 404.1519a(b)(emphasis added by this

Court).

non-exclusive

The

list

of

appointment of a consultative examiner.

situations

require

the

It is not discretionary.

This Court cited the correct regulation.
Further, the obligation imposed by this Court upon the ALJ was
not “novel” but routinely required as evidenced by the recognition
in the regulations.

The facts and circumstances in the table case

of Smith v. Chater, 105 F.3d 670 (10th Cir. Jan. 2, 1997) cited by
Defendant are inapposite to those present in this case.
Defendant also contends the ALJ should not have been required
to order another consultative examination when Plaintiff failed to
appear for examinations which were ordered. Plaintiff communicated
her inability to secure travel to the examinations to Defendant.
Given the sparse medical record, it was imperative for Defendant to
make every effort to develop the record to ascertain Plaintiff’s
limitations.
the

Ordering a further examination was reasonable under

circumstances.

Based

upon

the

record

and

the

ALJ’s

deficiencies, this Court cannot conclude Defendant’s position was
substantially justified.

3

Considering the necessity for Plaintiff to file a reply and
the Supplemental Application, the request for additional fees is
warranted.
IT IS THEREFORE ORDERED that Plaintiff’s Application for Award
of Attorney’s Fees Pursuant to the Equal Access to Justice Act
(Docket Entry #23) and Supplemental Application for Award of
Attorney’s Fees (Docket Entry #27) are hereby GRANTED and that the
Government is ordered to pay Plaintiff’s attorney’s fees in the
total amount of $5,057.20.
Tenth

Circuit

Court

of

In accordance with the ruling of the

Appeals,

the

award

shall

be

made

to

Plaintiff as the prevailing party and not directly to Plaintiff’s
counsel.

Manning v. Astrue, 510 F.3d 1246, 1255 (10th Cir. 2007);

28 U.S.C. § 2412(b).

In addition, should Plaintiff’s counsel

ultimately be awarded attorney’s fees pursuant to 42 U.S.C. §
406(b)(1), counsel shall refund the smaller amount to Plaintiff.
Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
IT IS SO ORDERED this 30th day of April, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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