Greenwalt v. Commissioner of Social Security

Filing 34

MEMORANDUM OPINION AND OPINION -- The Court GRANTS Plaintiff's Motion for Attorney Fees ECF No. 30 and Supplemental Application for Attorney Fees ECF No. 33 . See order as more fully set out. Signed by Magistrate Judge Shon T. Erwin on 9/23/16. (mc)

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

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Case No. CIV-14-1177-STE

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Attorney Fees under the Equal Access to
Justice Act (EAJA) (ECF No. 30), and his Supplemental Application for Award of
Attorney’s Fees under EAJA (ECF No. 33). Specifically, Plaintiff seeks an award of fees in
the total amount of $6,650.00. (ECF No. 33 & 33-1). Defendant objects to any award of
fees, arguing that her position was “substantially justified.” The Court rejects
Defendant’s argument and GRANTS an award of fees to Plaintiff in the amount
requested.
I.

ATTORNEY FEES AUTHORIZED UNDER EAJA
EAJA entitles a prevailing party to recover reasonable attorney fees from the

government “‘unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award unjust.’” Al–Maleki v.

Holder, 558 F.3d 1200, 1204 (10th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)). The
test for “substantial justification” is one of “reasonableness in law and fact.” Hackett v.

Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). In other words, “the government’s
position must be “justified to a degree that could satisfy a reasonable person.” Pierce v.

Underwood, 487 U.S. 552, (1988).
“The term ‘position’ includes the government’s position both in the underlying
agency action and during any subsequent litigation.” Hadden v. Bowen, 851 F.2d 1266,
1268 (10th Cir. 1988); see 28 U.S.C. § 2412(d)(2)(D) (explaining that the “position of
the United States” is “in addition to the position taken by the United States in the civil
action, the action or failure to act by the agency upon which the civil action is based.”).
The burden rests with the government to prove that its position was substantially
justified. Kemp v. Bowen, 822 F.2d 966, 967 (10th Cir. 1987).
II.

PLAINTIFF IS THE PREVAILING PARTY
Previously, the Court ordered reversal of the Commissioner’s decision denying

Plaintiff’s application for disability benefits and a remand for further administrative
proceedings (ECF Nos. 28 & 29). The reversal was based on the ALJ’s improper
evaluation of the opinions from a treating physician, Dr. Prashant Phatak. (ECF No.
28:4-12). With the reversal and remand, Mr. Greenwalt is considered the “prevailing
party” for purposes of EAJA. See Shalala v. Schaefer, 509 U.S. 292 (1993). Thus, the
only issues are whether the government’s position was “substantially justified” and
whether any special circumstances exist which would prevent an award of benefits.

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III.

PLAINTIFF IS ENTITLED TO AN AWARD OF BENEFITS
As stated, the ALJ committed legal error in his failure to properly evaluate

opinions from treating physician, Dr. Phatak. Specifically, the ALJ committed two errors.
First, the ALJ provided three invalid rationales for rejecting Dr. Phatak’s opinion
regarding Mr. Greenwalt’s ability to sit. (ECF No. 28:9-12). Second, the ALJ omitted any
discussion of Dr. Phatak’s opinions concerning Mr. Greenwalt’s ability to lift, carry,
stand, and his need for a job which allowed: (1) unscheduled breaks, (2) an at-will sitstand option, and (3) Plaintiff to elevate his legs.
For two reasons, Defendant contends that the government’s position was
substantially justified. First, Ms. Colvin points to evidence in the record concerning
Plaintiff’s normal respiratory and cardiac functioning and Plaintiff’s ability to walk which
she states had allegedly contradicted Dr. Phatak’s opinions. (ECF No. 31:4-6). As a
result, Defendant contends that the ALJ’s failure to expressly link these findings to a
rejection of Dr. Phatak’s opinions constituted only harmless error. (ECF No. 31:6).
Second, Ms. Colvin attempts to justify the ALJ’s treatment of Dr. Phatak’s opinion
regarding Plaintiff’s ability to sit. (ECF No. 31:6-8). Even if these rationales had merit,
Ms. Colvin has still failed to prove that her position was substantially justified because
she ignores the fact that the ALJ failed to provide specific, legitimate reasons for
rejecting Dr. Phatak’s opinions regarding Mr. Greenwalt’s ability to lift, carry, and stand,
as well as his need for a job which allowed: (1) unscheduled breaks, (2) an at-will sitstand option, and (3) elevation of Plaintiff’s legs.

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As previously noted, the test for “substantial justification” is one of
“reasonableness in law and fact.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir.
2007). Well-established Tenth Circuit law dictates that if an ALJ completely rejects an
opinion, he must provide specific, legitimate reasons for doing so. See Watkins v.

Barnhart, 350 F.3d 1297, 1300 (10th Cir. 2003). The ALJ failed in this regard,
constituting reversible error. See ECF No. 28:12. As a result, the Court concludes that
the government’s position is not substantially justified, and Plaintiff is entitled to recover
EAJA fees.
IV.

AMOUNT OF RECOVERABLE FEE
Ms. Colvin did not meet her burden of proof to show that the government’s

position was substantially justified. Further, the undersigned knows of no special
circumstances which would make an award of attorney fees unjust. Thus, the only
remaining issue concerns the reasonableness of the fee requested.
Plaintiff seeks an attorney fee award of $6,650.00, calculated as follows: 3.1
hours of work performed by his attorney in 2014 at a rate of $190.00 per hour
($589.00), 1.3 hours of paralegal work performed in 2014 at a rate of $100.00 per hour
($130.00), 21.7 hours of work performed by his attorney in 2015 at a rate of $190.00
per hour ($4,123.00), 9.6 hours of paralegal work performed in 2015 at a rate of
$100.00 per hour ($960.00), 4.4 hours of work performed by his attorney in 2016 at a
rate of 190.00 per hour ($836.00), and .1 hours of paralegal work performed in 2016 at
a rate of $120.00 per hour ($12.00). (ECF No. 33-1). Ms. Troutman has provided a

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detailed breakdown of time expended in representing Mr. Greenwalt, and the
undersigned finds that this uncontroverted statement reflects a reasonable amount of
time for this matter. However, an award under EAJA is limited to $125.00 per hour
unless the court determines that an increase in the cost of living or another special
factor justifies a higher fee. 28 U.S.C. §2412(d)(2)(A)
Ms. Troutman has requested an upward adjustment of the statutory rate for
attorney fees and has provided supporting documentation in the form of a letter dated
March 24, 2016, from the Office of the General Counsel of the Social Security
Administration. (ECF No. 30-4). This letter shows that for 2014, 2015, and 2016, the
authorized maximum hourly rate for attorney work in Oklahoma was $190.00. (ECF No.
26-1). Thus, Mr. Greenwalt is entitled to an upward adjustment of the hourly attorney
fee consistent with the evidence provided. Additionally, Plaintiff is entitled to recover
paralegal fees at prevailing market rates. See Richlin Sec. Serv. Co. v. Chertoff, 553
U.S. 571, 581 (2008). Plaintiff has submitted the hourly paralegal rate as $100.00 for
2014 and 2015 and $120.00 for 2016, and Ms. Colvin has not objected. Therefore, the
Court concludes that this hourly rate is reasonable and within the acceptable prevailing
market rate.
The Court therefore finds that Plaintiff is entitled to a total attorney fee award in
the amount of $6,650.00. Said fee is payable to Plaintiff. See Astrue v. Ratliff, 130
S.Ct. 2521, 2524 (2010). If attorney fees are also awarded under 42 U.S.C. § 406(b) of

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the Social Security Act, Plaintiff’s counsel is to refund the smaller amount to Plaintiff.

Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
ORDER
The Court GRANTS Plaintiff’s Motion for Attorney Fees (ECF No. 30) and
Supplemental Application for Attorney Fees (ECF No. 33) in the total amount of
$6,650.00.
ENTERED on September 23, 2016.

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