Whelan v. Colvin

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION for 21 Motion for Attorney Fees filed by Karen Whelan, 25 Report and Recommendation,. Signed by Honorable David L. Russell on 9/21/16. (jw)

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

KAREN WHELAN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

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Case No. CIV-15-129-R

ORDER
Before the Court is the Report and Recommendation of United States
Magistrate Judge Shon T. Erwin that Plaintiff Karen Whelan be awarded attorney
fees in the amount of $7,071.20 under the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412 (Doc. No. 25). Defendant Carolyn W. Colvin, the Acting
Commissioner of the Social Security Administration, filed an Objection to Report
and Recommendation (Doc. No. 26). 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. 12, 2016 (Doc. No. 20) 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. 1
“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 Defendant selectively reviewed medical evidence
when considering Plaintiff’s medical condition. Such selective review is
prohibited by law. Clifton v. Chater, 79 F.3d 1007, 1009−10 (10th Cir. 1996).
Further, the Defendant inappropriately relied on the Plaintiff’s ability to complete

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Though any attorney fees awarded must be reasonable in their amount, the Defendant has not
objected to the reasonableness of the requested fee.

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minimal daily activities as evidence that she did not suffer disabling pain. That
“reliance on [Plaintiff’s] ‘daily activities’ to undercut [her] allegation of pain is
misplaced.” Frey v. Bowen, 816 F.2d 508, 517 (10th Cir. 1987). And finally,
Defendant mischaracterized the evidence in discounting Plaintiff’s credibility.
This mischaracterization runs counter to established law. See, e.g., Sisco v. U.S.
Dep't of Health & Human Servs., 10 F.3d 739, 743 (10th Cir. 1993) (reversing
district court’s decision affirming denial of disability benefits because the “ALJ
built his factual basis by taking Plaintiff's testimony out of context and selectively
acknowledging parts of her statements while leaving important segments out”).
For these reasons, the Court hereby ADOPTS the Report and
Recommendation of the Magistrate Judge in its entirety and awards EAJA fees in
the amount of $7,071.20. Further, if attorney fees are also awarded under 42
U.S.C. § 406(b) of 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).
IT IS SO ORDERED this 21stday of September, 2016.

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