Dickson v. Social Security Administration

Filing 28

OPINION AND ORDER Awarding Attorneys' Fees to the Plaintiff Under the EAJA by Magistrate Judge Steven P. Shreder GRANTING 23 Motion for Attorney Fees, and GRANTING 26 Supplemental Motion for Attorney Fees by Virgil Paul Dickson. (ndd, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
VIRGIL PAUL DICKSON,

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

Case No. CIV-16-270-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 attorney’s fees in the total amount of $3,943.80, under the Equal Access to
Justice Act (the “EAJA”), 28 U.S.C. § 2412. See Plaintiff’s Motion and Brief in Support
for an Award of Attorney’s Fees Under the Equal Access to Justice Act 28 U.S.C. § 2412
[Docket No. 23] and Plaintiff’s Supplemental Motion for an Award of Attorney’s Fees
Under the Equal Access to Justice Act [Docket No. 26]. 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 sole contention of error was that the ALJ’s decision was
undermined by evidence submitted to the Appeals Council.

The Commissioner’s

response to the EAJA fees motion asserts that her position on appeal was substantially
justified because the arguments made before this Court were plausible and reasonable in
fact and law, and the duty to weigh evidence is the sole province of the ALJ. 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 test 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. In this case, the Court found that the ALJ’s decision was not supported by
substantial evidence in light of the new evidence submitted to the Appeals Council.
-2-

Here, the Commissioner argues that her position was substantially justified because of the
Tenth Circuit’s decision in Vellejo v. Berryhill, 849 F.3d 951, 955 (10th Cir. 2017). The
ALJ recognized this Court’s acknowledgment that Vallejo stands for the proposition that
the Appeals Council is not required to make factual findings as to newly-submitted
evidence, but ignored this Court’s distinguishing finding that an ALJ’s decision must
nevertheless be supported by substantial evidence, including newly submitted evidence.
See Docket No. 21, p. 11 (emphasis added). The Commissioner also criticizes this
Court’s notation of additional evidence submitted to the Appeals Council that calls into
question the decision of the ALJ, even though such evidence was not the basis of
reversal. The Commissioner thus challenges an award of attorney’s fees, arguing that the
law was unsettled at the time of the briefing and that Vallejo is “congruent” with the
Commissioner’s continuing arguments, despite this Court’s finding to the contrary that
the decision was not based on substantial evidence in light of all of the evidence in the
record. 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

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); Drapeau v. Massanari, 255 F.3d
1211, 1214 (10th Cir. 2001) (“Although we review the ALJ’s decision for substantial

-3-

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).
The Court therefore concludes that the Plaintiff should be awarded attorney’s fees
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 Motion and Brief in Support for
an Award of Attorney’s Fees Under the Equal Access to Justice Act 28 U.S.C. § 2412
[Docket No. 23] in the amount of $3,709.80 and Plaintiff’s Supplemental Motion for an
Award of Attorney’s Fees Under the Equal Access to Justice Act [Docket No. 26] in the
amount of $234.00 are hereby GRANTED and that the Government is hereby ordered to
pay attorney’s fees in the amount of $3,943.80 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 24th day of January, 2018.

-4-