Marlowe v. Commissioner of Social Security

Filing 22

ORDER denying 19 plaintiff's Motion for Attorney's Fees under the Equal Access to Justice Act (as more fully set out). Signed by Honorable Vicki Miles-LaGrange on 10/20/2015. (ks)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NORMAN MARLOWE,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. CIV-14-314-M

ORDER
On March 31, 2015, United States District Judge Vicki Miles-LaGrange entered an Order
and Judgment in this case reversing the decision of the Acting Commissioner of Social Security
Administration and remanding this case for further administrative proceedings. Based on same, on
April 7, 2015, counsel for plaintiff timely filed a Motion for Attorney’s Fees Under the Equal
Access to Justice Act, requesting an award of fees in the amount of $8,721.80. On April 20, 2015,
defendant filed her response. Plaintiff has filed no reply.
Plaintiff raised two issues in his opening brief on the merits in this case: (1) the
Administrative Law Judge (“ALJ”) erred in articulating the sit/stand option within his residual
functional capacity, and (2) the ALJ erred in assessing plaintiff’s credibility. The United States
Magistrate Judge recommended that this Court affirm. Plaintiff solely objected to the Magistrate
Judge’s recommendation that the Court affirm the ALJ’s articulation of the sit/stand option. This
Court declined to adopt the Magistrate Judge’s Report and Recommendation, finding that the
sit/stand limitation “is not sufficiently specific as to the frequency of plaintiff’s need to alternate
sitting and standing.” March 31, 2015 Order [docket no. 17] at 2.

Under the Equal Access to Justice Act, the prevailing party in an action brought by or against
the United States is entitled to fees, other expenses, and costs “unless the court finds that the position
of the United States was substantially justified or that special circumstances make an award unjust.”
28 U.S.C. § 2412(d)(1)(A). It is the government’s burden to show that its position was substantially
justified. Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988). “To do so, the government must
prove that its case had a reasonable basis in law and in fact.” Id. Further, the United States Supreme
Court has defined “substantially justified” as “‘justified in substance or in the main’ – that is,
justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552,
565 (1988).
In determining whether the government’s position was reasonable,
the trial judge must make a separate review of the government’s
position to determine whether it was substantially justified. The term
“position” includes the government’s position both in the underlying
agency action and during any subsequent litigation.
The
government’s success or failure on the merits at each level may be
evidence of whether its position was substantially justified, but that
success or failure alone is not determinative of the issue.
Hadden, 851 F.2d. at 1267 (internal citations omitted). The Tenth Circuit has held that the
government’s position can be substantially justified even though it is not correct. See Madron v.
Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011).
In her response, defendant asserts that the government’s position was substantially justified.
Specifically, defendant asserts that her consideration of the credibility of plaintiff’s complaints and
the articulation of the sit/stand option was reasonable in law and in fact. Further, regarding the
sit/stand option, defendant states that she cited Tenth Circuit decisions that distinguished the
requirements of Social Security Ruling 96-8p, upon which plaintiff relied, and relied upon cases that
had affirmed ALJ decisions that described a sit/stand option in more general terms. Finally,
2

defendant asserts that the Magistrate Judge’s recommendation demonstrates that reasonable minds
could differ and defendant’s consideration and defense of the ALJ’s articulation was substantially
justified.
Having carefully reviewed the parties’ submissions and the case file, the Court finds that
defendant has satisfied her burden of showing that the government’s position was substantially
justified.

Specifically, the Court finds that the government’s position, although ultimately

determined to be incorrect by this Court, had a reasonable basis in fact and in law. Further, the
Court finds that the Magistrate Judge’s recommendation regarding the sufficiency of the sit/stand
option shows that defendant’s position was justified to a degree that could satisfy a reasonable
person.
Accordingly, the Court DENIES plaintiff’s Motion for Attorney’s Fees under the Equal
Access to Justice Act [docket no. 19].
IT IS SO ORDERED this 20th day of October, 2015.

3