Harman v. Colvin

Filing 32

ORDER denying 25 Motion for Attorney Fees; adopting Report and Recommendations re 29 Report and Recommendation.. Signed by Honorable David L. Russell on 05/12/2016. (md)

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

TONDA L. HARMON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

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CIV-15-202-R

ORDER
Following an Order remanding this matter to the Commissioner for further
proceedings, Plaintiff sought an award of attorney’s fees pursuant to 28 U.S.C. § 2412,
the Equal Access to Justice Act. The matter was referred to United States Magistrate
Suzanne Mitchell for review. On March 15, 2016, Judge Mitchell issued a Report and
Recommendation wherein she recommended the motion be denied. The matter is
currently before the Court on Plaintiff’s timely objection to the Report and
Recommendation, which gives rise to the Court’s obligation to undertake a de novo
review of those portions of the Report and Recommendation to which Plaintiff makes
specific objection. Having conducted this review, the Court finds as follows.
Judge Mitchell’s recommendation is based on her determination that that the
United States’ position was “substantially justified.” See 28 U.S.C. § 2412(d)(1)(A),
(d)(2)(D). “Substantially justified” is defined as “justified in substance or in the main –
that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood,

487 U.S. 552, 565 (1988)(quotation omitted). Plaintiff contends the United States’
position was not substantially justified because the Court reversed and remanded based
on an inadequate credibility analysis.
The Commissioner bears the burden of demonstrating that her position was
substantially justified, meaning, her “position was reasonable in law and in fact and thus
can be justified to a degree that could satisfy a reasonable person.” Harrold v. Astrue,
372 Fed.Appx. 903, 904 (10th Cir. 2010) (unpublished) (internal quotation marks and
citations omitted). “Both the Commissioner's prelitigation and litigation positions must
have had reasonable bases in fact and law to be considered substantially justified.” Id.
(citation omitted). Further, EAJA fees “generally should be awarded where the
government's underlying action was unreasonable even if the government advanced a
reasonable litigation position.” Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th Cir.
2007) (citation omitted). Any EAJA attorney fees awarded must be reasonable. Robinson
v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).
The Court concurs with Judge Mitchell with regard to her conclusion that the
position of the United States was substantially justified. As stated by the court in Hernes
v. Barnhart, 2002 WL 32341703 (W.D. Wis. 2002):
There was evidence in the record to support the commissioner’s decision;
in fact, this court noted that the record contained at best borderline evidence
to support plaintiff’s claim of disability. This court remanded the case so
that the commissioner could articulate more completely his rationale for
concluding that plaintiff’s activities and medical treatment history were not
consistent with his allegations of disability. An administrative law judge’s
failure to articulate sufficiently the pat of his reasoning “in no way
necessitates a finding the [commissioner’s] position was not substantially
justified” within the meaning of the EAJA.” Stein v. Sullivan 966 F.2d 317,

320 97th Cir. 1992). . . . Although these errors may sound significant, in
reality this was a close case and one that a different court may have decided
differently.
Id.at *3. Similarly, the court in Lloyd v. Colvin, 2014 WL 3585305 (D.Colo. 2014):
In this instance the Court finds that the government’s position was
substantially justified both at the agency level and in litigation. This case
was a difficult one for the Court to decide on the merits. Notably, there was
substantial evidence on the record that the objective medical evidence did
not support a finding of disability. Further, Magistrate Judge Mix
recommended that the decision be affirmed, based in part on her finding
that the ALJ sufficiently liked his evaluation of Mr. Lloyd’s credibility to
substantial evidence in the record. Though this Court ultimately disagreed,
reasonable minds could certainly differ over whether the credibility
determinations were adequately made.
Id. at 2. Although Plaintiff attempts to distinguish these cases, which were cited by
Judge Mitchell in the Report and Recommendation, the Court disagrees. The
position espoused by the Commissioner was substantially justified, and therefore,
for the reasons set forth above and in the Report and Recommendation, the
Plaintiff’s Motion for Attorney’s Fees is hereby DENIED. The Report and
Recommendation is ADOPTED.
IT IS SO ORDERED this 12th day of May, 2016.