Lennox v. Commissioner of Social Security

Filing 25

ORDER denying 22 plaintiff's motion for an award of attorney's fees under the EAJA. Signed by Honorable Joe Heaton on 1/11/2016. (cla)

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

DONALD L. LENNOX,
Plaintiff,
NO. CIV-15-0073-HE

vs.

CAROLYN W. COLVIN,

Acting Commissioner of the Social
Security Administration,
Defendant.
ORDER

Plaintiff Donald L. Lermox filed this action seeking judicial review of the final

decision ofthe Commissioner ofthe Social Security Administration denying his application
for supplemental security income benefits. On November 23,2015, the court reversed and
remanded the case for further administrative proceedings. 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 does not object to the amount of the fee request, but

claims that, because her position was substantially justified, plaintiff is not entitled to a fee
award.

The government bears the burden ofdemonstrating that its position was substantially
justified. Hackett v. Bamhart. 475 F.3d 1166, 1172 (10th Cir. 2007). The term "position"

refers both to the government's stance 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).
The court concludes that defendant's position, considered "as an inclusive whole,"

was reasonable in law and fact. See Madrid v. Astrue. 243 Fed. Appx. 387, 392 (10th Cir.

2007)(unpublished).' In the court's remandorder, it determined that the administrative law
judge (ALJ) did not include sufficient explanation of his evaluation of certain evidence,
including diagnoses of additional mental impairments. Doc. No. 20. The court also found
lacking the ALJ's specific grounds for rejection of disabled status. Id. However, the
government's position was not necessarily unreasonable, considered in concert with the legal

and factual findings the ALJ ^

include. See Madrid. 243 Fed. Appx. at 391-92 (holding

the Commissioner's position to be substantially justified despite the ALJ's failure to develop
the record, which was legal error). On review ofthe record in this case, including plaintiffs
inconsistent positions throughout the proceedings, the government's position was

substantially justified.^
Accordingly, plaintiffs motion for award of attorney's fees [Doc. No. 22] is
DENIED.

^Madrid is citedfor persuasive value only under 10th Cir. R. 32.1.
^Defendant argues, in the alternative, that plaintiffs motionforfees and costs is
premature. However, in light ofthe court's determination ofsubstantialjustification,
defendant's alternative argument need not be addressed.
2

IT IS SO ORDERED.

Dated this

day of January, 2016.

JOE BEATON
U.S. DISTRICT JUDGE