Buckley v. Colvin

Filing 30

ORDER granting 23 Motion for Attorney Fees; adopting Report and Recommendations re 28 Report and Recommendation, as more fully set out. Signed by Honorable David L. Russell on 1/13/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA

CHERYL BUCKLEY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-15-65-R

ORDER ADOPTING REPORT AND RECOMMENDATION
Before the Court is the Report and Recommendation of United States
Magistrate Judge Shon T. Erwin that Plaintiff Cheryl Buckley be awarded attorney
fees in the amount of $7,325.00 under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412 (Doc. No. 28). Defendant Carolyn W. Colvin, the Acting
Commissioner of the Social Security Administration, filed an Objection to Report
and Recommendation (Doc. No. 29). When either party objects to any portion of a
Magistrate Judge’s Report and Recommendation, the district court makes a de
novo determination of that portion of the Report. 28 U.S.C. § 636(b)(1)(C).
Having reviewed de novo the Magistrate’s Report and Recommendation,
the Court concurs with Judge Erwin and ADOPTS his Report and
Recommendation in its entirety for the reasons discussed below.

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The 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)). Plaintiff is a prevailing party by way of the Judgment entered by
the Court on Feb. 19, 2016 (Doc. No. 22) reversing the decision of the Defendant
denying disability insurance benefits to Plaintiff. See Shalala v. Schaefer, 509 U.S.
292, 297−298 (1993) (judgment affirming or reversing Commissioner’s grant or
denial of request for Social Security disability benefits confers prevailing party
status). Because Plaintiff is the prevailing party and the Court finds no special
circumstances making an award unjust, she is entitled to attorney fees unless the
United States was substantially justified in its decision to deny her benefits.
“Substantial justification” is a question of “reasonableness in law and fact.”
Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007).
Here, the Court agrees with the Magistrate’s Report and Recommendation
that the Defendant was not substantially justified in its decision to deny Plaintiff
her Social Security benefits. The ALJ’s failure to follow well-established law
prevents the decision from having a reasonable basis in law and fact. The wellestablished law ignored by the ALJ was the failure to “include all (and only) those
impairments borne out by the evidentiary record” in his hypothetical question to
the vocational expert (VE) inquiring about the jobs that Plaintiff was able to do.
Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995). As a result, the “[t]estimony
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elicited by hypothetical questions [from the ALJ did] not relate with precision all
of [Plaintiff’s] impairments [and thus] cannot constitute substantial evidence to
support the [Commissioner’s] decision.” Hargis v. Sullivan, 945 F.2d 1482, 1492
(10th Cir. 1991).
Here, the state agency physician, Dr. Harley, concluded that Plaintiff was
“markedly” limited in her ability to understand, remember, and carry out detailed
instructions. Thus, when the ALJ presented a hypothetical question to the VE if
any jobs existed for a person who could not relate to the general public and for
who was limited to simple tasks with routine supervision, “[t]he limitation . . . in
his hypothetical to the VE did not clearly relate the moderate impairments [Dr.
Hartley] found.” Jaramillo v. Colvin, 576 Fed.App’x 870, 876 (10th Cir. Aug. 27,
2014). “[T]he ALJ was required to express those impairments [a markedly limited
ability to understand, remember, and carry out detailed instructions, as found by
Dr. Hartley] in terms of work-related functions or work-related mental activities.”
Id. (internal quotes omitted). This generalized restriction offered by the ALJ in his
question to the VE does not suffice. See, e.g., White v. Colvin, 2016 WL 1175492,
at *5 (N.D. Okla. Mar. 23, 2016) (acknowledging “the uncontroversial statement
that an ALJ must consider evidence of mental impairments, including limitations
in concentration and attention, when formulating a claimant's RFC or a
hypothetical question for the VE . . . .”)

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For these reasons, the Court hereby ADOPTS the Report and
Recommendation of the Magistrate Judge in its entirety and awards EAJA fees
and costs as set forth in the Report and Recommendation.
IT IS SO ORDERED this 13th day of January, 2017.

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