Dysart v. Social Security Administration

Filing 28

OPINION AND ORDER by Magistrate Judge Gerald B Cohn ; denying 25 Motion for Attorney Fees (sdc, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
TAMERA DYSART,
Case No. 4:16-cv-00410-GBC
Plaintiff,
(MAGISTRATE JUDGE COHN)
vs.
NANCY A. BERRYHILL, 1
Acting Commissioner of the Social Security
Administration,

OPINION AND ORDER TO DENY
PLAINTIFF’S MOTION FOR ATTORNEY
FEES

Defendant.

OPINION AND ORDER TO DENY PLAINTIFF’S MOTION FOR ATTORNEY FEES
Before the Court is Plaintiff’s Application for Award of Attorney Fees pursuant to 28
U.S.C. § 2412, the Equal Access to Justice Act (the “EAJA”). (Doc. 25). The Commissioner
objects to the request. (Doc. 26).
The EAJA requires the United States to pay attorney fees and expenses to a “prevailing
party,” unless the Court finds the position of the United States was substantially justified, or special
circumstances make an award unjust. 28 U.S.C. § 2412(d). The United States bears the burden of
proving that its position was substantially justified. Kemp v. Bowen, 822 F.2d 966, 967 (10th Cir.
1987). In addition, once an EAJA application is filed, the government must justify both its position
in any underlying administrative proceedings and in any subsequent court litigation. Hackett v.
Barnhart, 475 F.3d 1166, 1170 (10th Cir. 2007).
In Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541 (1988), the Supreme Court
defined “substantially justified” as “justified in substance or in the main—that is, justified to a

1 Effective January 23, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of the Social Security Administration (“SSA”) and is substituted as defendant in
this action pursuant to Federal Rule of Civil Procedure 25(d).

degree that could satisfy a reasonable person.” “Substantially justified” is more than “merely
undeserving of sanctions for frivolousness.” Id. However, the Tenth Circuit has held that EAJA
fees are not automatically awarded in all Social Security cases where the government is
unsuccessful on the merits. Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir. 1988). To determine
whether a position is substantially justified, the Court is guided by the language in Pierce, that “a
position can be justified even though it is not correct . . . and can be substantially (i.e., for the most
part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in
law and fact.” Pierce v. Underwood, 487 U.S. 552, 566, n.2.
In addition, in determining whether the government’s position is substantially justified, the
Court is not to equate the concept of substantial justification with the substantial evidence required
to support the agency’s decision. Hadden, 851 F.2d at 1269. The Tenth Circuit has rejected such
an approach, holding that a position may be substantially justified even though it is not supported
by substantial evidence. Id. If this were not the case, there would be “an automatic award of
attorney’s fees in all social security cases in which the government was unsuccessful on the
merits.” Id. The Tenth Circuit has reasoned that an automatic award of fees under the EAJA would
be contrary to the intent of Congress and has adopted the majority rule “that a lack of substantial
evidence on the merits does not necessarily mean that the government’s position was not
substantially justified.” Id. at 1267. The Court quoted the following language from a Second
Circuit case:
[A] reversal based on the ‘hazy contours of the “substantial evidence” rule’ does
not necessarily mean that the position of the Government was not substantially
justified.
Id. at 1269 (quoting Cohen v. Bowen, 837 F.2d 582, 858 (2nd Cir. 1988)). In the instant case, the
Court reversed and remanded based on a finding that “appropriate circumstances” pursuant to SSR

96-6p did not exist, and the ALJ lacked substantial evidence to find that a non-examining physician
opinion outweighed a treating source opinion pursuant to 20 C.F.R. 404.1527(c)(2). (Doc. 21).
The Court’s decision to remand turned on the interpretation and application of “appropriate
circumstances” pursuant to SSR 96-6p. A reasonable person could disagree with the Court in this
respect even though the Court would view such disagreement as incorrect. Thus, the
Commissioner’s decision was substantially justified. See Pierce v. Underwood, 487 U.S. 552, 566,
n.2.
Based on the foregoing, the Court finds that the Commissioner’s position, although not
correct, was substantially justified and a reasonable person could have decided in the
Commissioner’s favor. Id. Thus, Plaintiff’s Application for Award of Attorney Fees (Doc. 25) is
DENIED.
SO ORDERED this January 29, 2018.

G rl B C h
ea . o n
d
U i dSae MairtJ d e
nt tt
e
s g t e ug
sa