Baker v. Commissioner of Social Security

Filing 30

ORDER denying plaintiff's 27 motion for award of attorney's fees...see order for specifics. Signed by Honorable Joe Heaton on 4/5/2016. (cla)

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

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NO. CIV-14-0979-HE

ORDER
Plaintiff Vicki Ann Baker filed this action seeking judicial review of the final decision
of the Commissioner of the Social Security Administration denying her application for
disability insurance benefits. On October 23, 2015, the court reversed and remanded the case
for further administrative proceedings on the basis the administrative law judge (“ALJ”)
failed to explain why he accorded little weight to the opinion of plaintiff’s treating physician.
Plaintiff now seeks an award of attorney’s fees under the Equal Access to Justice Act
(“EAJA”), which authorizes a prevailing party in certain actions against the United States to
recover reasonable attorney’s fees when the government’s position is not “substantially
justified.” See 28 U.S.C. § 2412(d)(1)(A). The Commissioner has objected, arguing that
because her positions both in administrative proceedings and in litigation were substantially
justified, plaintiff is not entitled to a fee award.
The government bears the burden of demonstrating that its position was substantially
justified. Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). The term “position”
refers to the government’s stance both in the underlying agency action and during subsequent

litigation. Id.; 28 U.S.C. § 2412(d)(2)(D). Substantial justification requires only that the
government’s position be reasonable in law and fact—even if its efforts are not ultimately
successful. Madron v. Astrue, 646 F.3d 1255, 1257–58 (10th Cir. 2011).
Here, the government’s position, considered “as an inclusive whole,” was reasonable
in law and fact.

See Madrid v. Astrue, 243 F. App’x 387, 392 (10th Cir. 2007)

(unpublished).1 The ALJ failed to explain why Dr. Moore’s medical source opinion was
accorded little weight, but that does not mean that the assignment of little weight was, itself,
error. The order remanding this case for further administrative proceedings recognized that
“[i]t may well be that, upon remand, the ALJ can readily identify and explain the evidence
leading to the conclusion that the treating physician’s opinion should not be accorded
controlling weight.” Doc. No. 23, at 2. Both the Commissioner and the Magistrate Judge
who issued the Report and Recommendation noted various medical evidence which
contradicted Dr. Moore’s medical source opinion, including some medical evidence which
was included in Dr. Moore’s own treatment records.
The flaw in the ALJ’s opinion was a failure to explain the basis for its treatment of
the treating physicians opinion. However, as indicated, there was evidence in the record
which arguably supported that treatment. In these circumstances, the court concludes the
Commissioner’s position was substantially justified, though not ultimately successful. See
Flores v. Astrue, 246 F. App’x 540, 542–43 (10th Cir. 2007) (unpublished). Accordingly,

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Unpublished decisions are cited only for persuasive value under 10th Cir. R. 32.1.

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plaintiff’s motion for award of attorney’s fees [Doc. No. 27] is DENIED.
IT IS SO ORDERED.
Dated this 5th day of April, 2016.

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