Evans v. Social Security Administration
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)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
SUSAN A. EVANS,
NANCY A. BERRYHILL,
Acting Commissioner of the Social )
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,
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.,
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]
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.
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