Lavender v. Social Security Administration

Filing 32

OPINION AND ORDER by Judge Claire V Eagan ; granting 28 Motion for Attorney Fees (Re: 27 Judgment,, Entering Judgment,,,, Remanding Case, ) (RGG, Chambers)

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF OKLAHOMA

KALEN ELIZABETH LAVENDER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner, Social
Security Administration

Defendant.

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Case No. 15-CV-0538-CVE-FHM

OPINION AND ORDER
Now before the Court are plaintiff’s motion for attorney fees and expenses pursuant to the
Equal Access to Justice Act (Dkt. # 28) and plaintiff’s brief in support of her motion (Dkt. # 29).
Plaintiff requests $5,977.40 in attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (EAJA). Defendant objects, arguing that plaintiff is not entitled to attorney fees because
defendant’s position in this case was substantially justified. Dkt. # 30, at 1.
On January 4, 2013, plaintiff protectively filed an application for Title II disability benefits,
alleging disability beginning September 24, 2012. Dkt. # 11, at 62, 63. Plaintiff’s application stated
that she suffered from bipolar disorder, anxiety disorder, narcolepsy, social phobia, shingles, and
depression. Id. at 63. On July 3, 2014, an administrative law judge (ALJ) issued a written decision
finding that plaintiff was not disabled. Id. at 18. The ALJ found that plaintiff had the following
severe impairments: narcolepsy, bipolar disorder, generalized anxiety disorder, and social phobia.
Id. The ALJ found that plaintiff’s low back pain syndrome, obesity, and shingles were non-severe
impairments. Id. The ALJ determined the plaintiff’s residual functional capacity (RFC) without

mention of possible limitations due to plaintiff’s shingles. Id. at 20. Based on plaintiff’s RFC and
the testimony of a vocational expert, the ALJ determined that there were a significant number of jobs
in the national economy that plaintiff could perform. Id.
Plaintiff appealed the ALJ’s decision, arguing, inter alia, that the ALJ erred by failing to
consider plaintiff’s limitations from her shingles when formulating plaintiff’s RFC. Dkt. # 16, at 2-4.
Defendant argued that the ALJ was not required to include limitations from plaintiff’s shingles
because the medical record did not support limitations based on shingles. Dkt. # 19, at 7-9. A
magistrate judge entered a Report and Recommendation (Dkt. # 23) recommending that the Court
affirm defendant’s decision to deny plaintiff’s claim. Plaintiff objected, arguing, inter alia, that the
magistrate judge improperly inserted post hoc reasoning for the ALJ’s failure to discuss plaintiff’s
shingles. Dkt. # 24, at 1-2. Defendant continued to assert that the ALJ did not err by failing to
include plaintiff’s shingles in his RFC analysis because limitations based on shingles were not
supported by the medical record. Dkt. # 25, at 1. The Court found that the ALJ failed to make the
required findings regarding plaintiff’s shingles, and entered an Opinion and Order (Dkt. # 26)
reversing and remanding the ALJ’s decision for reconsideration of plaintiff’s testimony and medical
records about plaintiff’s shingles and her shingles’ possible affect on plaintiff’s RFC. Dkt. # 26, at
8. Plaintiff now asks the Court for attorney fees under the EAJA in the amount of $5,977.40.
Under the EAJA, “a fee award is required if: (1) plaintiff is a ‘prevailing party’; (2) the
position of the United States was not ‘substantially justified’; and (3) there are no special
circumstances that make an award of fees unjust.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th
Cir. 2007) (citing 28 U.S.C. § 2412(d)(1)(A). Defendant does not dispute that plaintiff is a prevailing
party and does not assert that there are any special circumstances that would make an award of fees

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unjust in this case. Dkt. # 30. The only dispute here is whether defendant’s position was
substantially justified. Id. Defendant bears the burden of showing that her position was substantially
justified by proving her case “had a reasonable basis in law and in fact.” Hadden v. Bowen, 851 F.2d
1266, 1267 (10th Cir. 1988); see also Hackett, 475 F.3d at 1172. In other words, defendant must
show her position was “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). Defendant’s “position can be justified even though it is not
correct.” Id. at 566 n.2.
Defendant argues that she had a reasonable basis in law and fact for believing that the ALJ’s
findings regarding plaintiff’s shingles were supported by the record and did not warrant remand.
Dkt. # 30, at 2. The Court determined that the ALJ failed to make findings required by Luna v.
Bowen, 834 F.2d 161 (10th Cir. 1987). Under Luna, once a plaintiff establishes a pain producing
impairment by objective medical evidence, and a loose nexus between the impairment and her
subjective complaints of pain, the court must consider all the evidence and determine whether the
pain is in fact disabling. Thompson v. Sullivan, 987 F.2d 1482, 1488 (10th Cir. 1993) (quoting
Musgrave v. Sullivan, 966 F.2d 1371, 1375-76 (10th Cir. 1992)). Here, in her hearing with the ALJ,
plaintiff testified extensively about the pain caused by her shingles, and the medical record shows
that plaintiff suffers from recurring shingles approximately twice a year. See Dkt. # 11, at 43-53,
237, 279, 282, 348, 355, 384. The ALJ found that plaintiff’s shingles were a non-severe impairment,
but failed to adequately explain his decision. Id. at 20. Further, the ALJ did not include plaintiff’s
pain and limitations from shingles in his RFC finding, nor did he explain his reasoning for not
including them. See id. at 23-27.

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Defendant’s position that the ALJ’s findings regarding plaintiff’s shingles were sufficient
was not substantially justified. Plaintiff’s medical record clearly establishes a pattern of shingles
accompanied by complaints of severe pain. In plaintiff’s hearing with the ALJ, plaintiff testified at
length about her pain from shingles and her limitations when her shingles recur. Thus, plaintiff
presented objective medical evidence of a pain producing impairment and a loose nexus between
that impairment and her subjective allegations of pain. Under Luna, the ALJ was required to make
findings regarding the possible disabling effect of plaintiff’s shingles. Instead, the ALJ failed to even
mention plaintiff’s shingles when calculating her RFC. Thus, the Court finds that defendant’s
position was not “justified to a degree that could satisfy a reasonable person.”
Defendant has not objected to the amount of EAJA fees requested by plaintiff’s counsel. The
Court has reviewed the hours and rate submitted by plaintiff’s counsel and finds that the amount is
reasonable. Further, if plaintiff’s counsel is ultimately awarded attorney fees under 42 U.S.C.
§ 406(b), counsel must refund to plaintiff the smaller of the EAJA award or the § 406(b) award
pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
IT IS THEREFORE ORDERED that plaintiff’s motion for attorney fees and expenses
pursuant to the Equal Access to Justice Act (Dkt. # 28) is granted, and plaintiff shall be awarded
attorney fees in the amount of $5,977.40. A separate judgment is entered herewith as to the award
of attorney fees.
DATED this19th day of January, 2017.

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