Evans v. Social Security Administration

Filing 26

OPINION AND ORDER Awarding Attorneys' Fees to the Plaintiff Under the EAJA by Magistrate Judge Steven P. Shreder granting 21 Motion for Attorney Fees by Susan A. Evans. (ndd, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA SUSAN A. EVANS, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of the Social ) Security Administration,1 ) ) Defendant. ) Case No. CIV-15-456-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 attorneys’ fees in the amount of $7,562.00, 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 8 U.S.C. § 2412 [Docket No. 21]. 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 under the EAJA as the prevailing party herein. On appeal, the Plaintiff’s argued that the ALJ erred in assessing her RFC, particularly with regard to limitations with regard to maintaining concentration, 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. persistence, and pace, and also erred in evaluating the opinion of a treating physician. This Court agreed that the ALJ did err in evaluating the opinion evidence in the record, and reversed with the instructions for the ALJ to properly consider the medical and other source evidence. See Docket No. 19. The Commissioner’s opposition to the present fee request is based on the assertion that her position with regard to the ALJ’s analysis was substantially justified because “a reasonable person” could find the ALJ’s analysis sufficient. 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. 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 attempts to re-litigate the arguments previously raised, asserting that the ALJ’s findings were not unreasonable. But this Court has already ruled that the ALJ’s findings were reversible error and that he did not provide the requisite analysis. Inasmuch as it was the ALJ’s obligation to provide such a proper analysis, see, e. g., -2- 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 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 in light of this Court’s findings with regard to the ALJ’s assessment regarding the analysis of the treating physician and consultative examiner. 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). The Court therefore concludes that the Plaintiff should be awarded attorneys’ fees and costs 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 8 U.S.C. § 2412 [Docket No. 21] -3- is hereby GRANTED and that the Government is hereby ordered to pay total attorney’s fees in the amount of $7,562.00 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 12th day of July, 2017. -4-

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