Harrigan v. Commissioner of Social Security

Filing 21

ORDER granting 18 Motion for Attorney Fees. Signed by Honorable David L. Russell on 4/14/15. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JO HARRIGAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.

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Case No. CIV-14-113-R

ORDER
Before the Court is Plaintiff’s Motion for Attorney’s Fees Under the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. No. 18. Specifically, Plaintiff seeks an
award of attorney’s fees in the amount of $8,386.80. Id. at 2. Defendant objects to any
award of attorney’s fees because, she argues, the government’s position was substantially
justified. Doc. No. 20, at 1. Having considered the parties’ submissions, the Court grants
the motion.
An award of attorney’s fees is not appropriate if “the court finds that the position
of the United States was substantially justified.” § 2412(d)(1)(A). “Substantially
justified” means “justified in substance or in the main,” or “justified to a degree that
could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). The
government’s position could be substantially justified even if it is incorrect. Id. at 566
n.2. “The burden rests with the government to prove that it was substantially justified in
arguing that the denial of benefits was supported by substantial evidence.” Kemp v.

Bowen, 822 F.2d 966, 967 (10th Cir. 1987). The government has not satisfied its burden
in this case.
The undersigned reversed the Commissioner’s decision denying Plaintiff’s
application for disability insurance benefits because Social Security Ruling 96-8p was
violated when the Administrative Law Judge (“ALJ”) did not express Plaintiff’s
moderate mental limitation, that he himself found, in terms of work-related functions in
his RFC finding. Order, Doc. No. 16, at 4-6. This error likely contributed to the ALJ
overlooking this limitation when he decided to apply the grids to determine whether
Plaintiff was disabled. Id. at 8.
Because Defendant has the burden of establishing substantial justification, she
must discuss why it was reasonable for the government to argue that the RFC finding
either did not violate Social Security Ruling 96-8p, or that any error was harmless. The
government maintains that the ALJ’s RFC finding did consist of work-related mental
functions, Doc. No. 20, at 5; but this is insufficient because the finding did not adequately
express all of Plaintiff’s mental limitations, specifically her moderate limitation with
regard to maintaining concentration, persistence, or pace.
Defendant further argues that Plaintiff waived this objection concerning mental
limitations by failing to raise it in her opening brief. Id. To the contrary, Plaintiff did raise
this objection in her Brief in Chief by stating that “[t]he RFC assessment must first
identify the individual’s functional limitations or restrictions and assess her work-related
abilities on a function-by-function basis.” Doc. No. 11, at 17. She argued that the ALJ
“does not express the claimant’s residual functional capacity in specific terms with
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appropriate references to pertinent evidence of record in accordance with Social Security
Ruling 96-8p.” Id. at 18. These statements clearly convey Plaintiff’s objection to the
sufficiency of the RFC finding in this regard.
As for the additional requirements for an award of attorney’s fees under the EAJA,
the Court finds that Plaintiff is the prevailing party herein; that Plaintiff’s net worth does
not and did not at the time this action was filed exceed $2,000,000; that there are no
special circumstances that would make an EAJA award unjust; and that the amount of
time expended, the hourly fees,1 and the total fees sought are reasonable. Therefore,
Plaintiff’s Motion for Attorney’s Fees Under the Equal Access to Justice Act [Doc. No.
18] is GRANTED. Plaintiff is hereby awarded $8,386.80 in fees, to be payable directly to
Jo Harrigan. In the event the EAJA fees awarded to Plaintiff are paid to Plaintiff’s
counsel and Plaintiff’s counsel later recovers fees pursuant to 42 U.S.C. § 406(b),
Plaintiff’s counsel shall refund the smaller award of attorney’s fees to Plaintiff.
IT IS SO ORDERED this 14th day of April, 2015.

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Under § 2412(d)(2)(A), “attorney fees shall not be awarded in excess of $125 per hour unless the court
determines that an increase in the cost of living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a higher fee.” Plaintiff seeks an award of fees at
a rate of $174 per hour. Doc. No. 19, at 9. The amount of $125 was substituted for $75 in the 1996
amendments to the EAJA. Contract with America Advancement Act of 1996, Pub. L. No. 104-121, 110
Stat. 847, § 232(b)(1). In 1996, $125.00 had the same buying power as $188.60 in 2014 and $187 in
2015. CPI Inflation Calculator, BUREAU OF LAB. STAT., http://www.bls.gov/inflation_calculator.htm (last
accessed Apr. 14, 2015); see FED. R. EVID. 201(b)(2) (authorizing courts to take judicial notice of facts
“from sources whose accuracy cannot reasonably be questioned). Therefore, the Court finds that given the
increase in the cost of living since 1996, an award of attorney’s fees at a rate of $174 per hour is
appropriate.
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