Bryant v. Commissioner of Social Security

Filing 27

ORDER granting 23 Motion for Attorney Fees. Signed by Magistrate Judge Charles B Goodwin on 02/22/2017. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JOHN H. BRYANT JR.,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,1
Defendant.

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Case No. CIV-15-245-CG

ORDER
On August 24, 2016, the Court entered a Judgment reversing the decision of the
Acting Commissioner of the Social Security Administration (“SSA”) and remanding this
case for further administrative proceedings. See J. (Doc. No. 22); see also Op. & Order
(Doc. No. 21). Plaintiff John H. Bryant Jr. now moves for an award of attorney’s fees in
the amount of $5681.60 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. See Pl.’s Mot. Att’y Fees (Doc. No. 23); Pl.’s Br. (Doc. No. 24). Defendant has
responded (Def.’s Resp. (Doc. No. 25)), and Plaintiff has replied (Pl.’s Reply (Doc. No.
26)).
I.

Attorney Fee Awards Under the EAJA
Section 2412(d) of the EAJA provides that a prevailing party other than the United

States shall be awarded reasonable fees in a civil action “unless the court finds that the
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Nancy A. Berryhill, the current Acting Commissioner of the Social Security
Administration, is hereby substituted as Defendant in this matter pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure.

position of the United States was substantially justified or that special circumstances make
an award unjust.” 28 U.S.C. § 2412(d)(1)(A), (d)(2)(A). The “position of the United
States” includes not only the position taken by the government in the present civil action
but also “the action or failure to act by the agency upon which the civil action is based.”
Id. § 2412(d)(2)(D). “[T]he required ‘not substantially justified’ allegation imposes no
proof burden on the fee applicant”; “the Government is aware, from the moment a fee
application is filed, that to defeat the application on the merits, it will have to prove its
position ‘was substantially justified.’” Scarborough v. Principi, 541 U.S. 401, 403 (2004);
accord Hackett v. Barnhart, 475 F.3d 1166, 1169 (10th Cir. 2007). To make this showing,
the government must prove that its case “had a reasonable basis in law and in fact.” Hadden
v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988). The term “substantially justified” has
been defined as “‘justified in substance or in the main—that is, justified to a degree that
could satisfy a reasonable person.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565
(1988)); see also 28 U.S.C. § 2412(d)(1)(B) (prescribing that whether the government’s
position was substantially justified is determined on the basis of the record before the court,
including the record of the agency’s action or failure to act upon which the civil action was
based).
II.

Whether Plaintiff Is the Prevailing Party
As noted above, the Court previously reversed the Acting Commissioner’s decision

denying Plaintiff’s applications for disability insurance benefits and supplemental security
income under the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Having obtained
reversal and remand under sentence four of 42 U.S.C. § 405(g), Plaintiff is considered the
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“prevailing party” for purposes of the EAJA. See id. at 13; 28 U.S.C. § 2412(d)(2)(B);
Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993).
III.

Whether the Government Has Shown Its Position Was Substantially Justified
In the administrative proceedings below, the ALJ committed two separate errors.

First, he rejected the medical opinion of Plaintiff’s treating physician Dr. Brent Hisey
regarding a sitting restriction based exclusively “on his own speculation about how ‘an
individual’ who has had successful spinal fusion ‘should’ be able to function a year later.”
Op. & Order at 9-10. The ALJ thereby failed to comply with the treating physician rule,
as he improperly “ma[de] speculative inferences from medical reports,” rejected a treating
physician’s opinion based upon “his own . . . speculation or lay opinion” rather than “on
the basis of contradictory medical evidence,” and failed to give “legitimate reasons” for
rejecting that opinion. Id. (citations and internal quotation marks omitted). Second, the
ALJ failed to properly evaluate Dr. Hisey’s medical opinion regarding Plaintiff’s need to
lie down during the workday, by: (i) first indicating that he was rejecting the limitation;
then (ii) appearing to adopt it but stating that the limitation can be accommodated through
normal work breaks—a “mere conclusion” for which the ALJ offered no basis and that was
unsupported by substantial evidence. Id. at 12 (citations and internal quotation marks
omitted).
Reversal therefore was required based upon the ALJ’s failure to apply the correct
legal standards and upon a lack of substantial evidence to uphold the ALJ’s residual
functional capacity determination. See id. at 3-4, 8-13. The Court declined to address other

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propositions of error raised by Plaintiff because they could be “‘affected by the ALJ’s
treatment of this case on remand.’” Id. at 4 (quoting Watkins, 350 F.3d at 1299).
Defendant objects to any award of fees, arguing that the government’s position was
substantially justified with respect to both denying Plaintiff’s applications for benefits and
defending that denial in this Court. See Def.’s Resp. at 3-7; see also Gutierrez v. Sullivan,
953 F.2d 579, 585 (10th Cir. 1992) (“We consider the reasonableness of the position the
Secretary took both in the administrative proceedings and in the civil action Plaintiff
commenced to obtain benefits.”). Although thorough, the ALJ’s assessment of Dr. Hisey’s
opinions reflected multiple legal errors. See Op. & Order at 9-13. Defendant has not shown
“a reasonable basis in law and in fact” for the ALJ’s denial of benefits. Hadden, 851 F.2d
at 1267; see Gutierrez, 953 F.2d at 584-86 (finding that district court abused its discretion
in denying fees to plaintiff where the ALJ’s findings were unreasonable based on the record
before the ALJ).
Defendant additionally asserts that her litigation position was substantially justified
because Defendant raised reasonable arguments on appeal as to why the ALJ’s error
regarding Dr. Hisey’s sitting restriction was harmless and why the ALJ’s findings
regarding Plaintiff’s abilities to sit and lie down were supported by substantial evidence.
“EAJA fees generally should be awarded where the government’s underlying action was
unreasonable even if the government advanced a reasonable litigation position.” Hackett,
475 F.3d at 1174 (internal quotation marks omitted). The Tenth Circuit has recognized an
exception to this rule, however, “when the Commissioner reasonably (even if

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unsuccessfully) argues in litigation that the ALJ’s errors were harmless.” Groberg v.
Astrue, 505 F. App’x 763, 765 (10th Cir. 2012).
Defendant did not argue that the ALJ’s erroneous assessment of Dr. Hisey’s lyingdown restriction was harmless. See Def.’s Br. (Doc. No. 20) at 13. Rather, Defendant
contended that the ALJ’s interpretation of Dr. Hisey’s restriction was reasonable, citing
Social Security Rulings, Dr. Hisey’s failure to elaborate, and a lack of other medical
opinions on the subject—none of which was relied upon in the ALJ’s written decision to
support this conclusion. See id.; cf. Groberg, 505 F. App’x at 765 n.1 (“We do not consider
an entirely new rationale for affirmance on grounds different from those previously
considered by the ALJ to be a true harmless error argument.”). Given that the Court may
not salvage an ALJ’s decision by adopting “post-hoc rationalizations” such as these,
Defendant’s litigation position was not substantially justified. Haga v. Astrue, 482 F.3d
1205, 1207 (10th Cir. 2007). The lying-down-restriction error by the ALJ by itself
warranted reversal, and so Defendant has not shown that her litigation position “cured
unreasonable agency action.” Groberg, 505 F. App’x at 768 (alteration and internal
quotation marks omitted); Op. & Order at 12-13; see Branum v. Barnhart, 385 F.3d 1268,
1270 (10th Cir. 2004).
Defendant thus has not shown that this case is “exceptional” or that the United
States’ position before the SSA and this Court was substantially justified. Groberg, 505 F.
App’x at 765, 768; see 28 U.S.C. § 2412(d)(1)(A), (B), (d)(2)(D).

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IV.

Whether Plaintiff’s Fee Request Is Reasonable
The Court is aware of no special circumstances that would make an award of

attorney’s fees unjust. See 28 U.S.C. § 2412(d)(1)(A). Thus, the only remaining issue is
the reasonableness of Plaintiff’s fee request. See id. § 2412(d)(1)(A), (B), (d)(2)(A).
Plaintiff seeks an attorney’s fee award of $5681.60, calculated as follows: 29.6
hours of work performed by her attorney in 2015 at a rate of $190.00 per hour; and 0.3
hours of work performed by her attorney in 2016 at a rate of $192.00 per hour. See Pl.’s
Mot. Att’y Fees at 14-5. Plaintiff’s attorney has provided a detailed statement of the time
expended on this case, and the Court finds that this uncontroverted statement reflects a
reasonable amount of time spent on this matter. See Pl.’s Br. Ex. 1 (Doc. No. 23-1) at 1-3.
An award under the EAJA is limited at $125.00 per hour unless the court determines
that an increase in the cost of living or special factor justifies a higher fee. See 28 U.S.C.
§ 2412(d)(A). Plaintiff has requested an upward adjustment of this statutory rate based
upon the agreed rates that “Defendant supplies . . . to district courts” in this state. Pl.’s Br.
at 4. Defendant does not dispute Plaintiff’s assertion or challenge the hourly fee requested
by Plaintiff. The Court takes judicial notice of the fact that SSA’s Office of General
Counsel (“OGC”) in Denver has agreed as a matter of policy that $190.00 is a reasonable
hourly rate for attorney work performed in 2015 and $192.00 is a reasonable hourly rate
for work performed in 2016 on Social Security cases in the Western District of Oklahoma.
See Kraft v. Colvin, No. CIV-15-739-STE (W.D. Okla.) (Mem. from Denver OGC Office
to Pls.’ Att’ys Handling Soc. Sec. Litig. in Okla. & N.M. (Oct. 20, 2016) (Doc. No. 33-2,

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at 2-3)). Plaintiff therefore is entitled to an upward adjustment of the statutory rate
consistent with the evidence provided and judicially noticed.2
CONCLUSION
Having considered the parties’ arguments as well as the relevant record, the Court
concludes that: (1) Plaintiff is a prevailing party; (2) the government’s position was not
substantially justified; and (3) the amount of the fee requested is reasonable. The Court
therefore GRANTS Plaintiff’s Motion (Doc. No. 23) and awards attorney’s fees under the
EAJA in the amount of $5681.60, with said amount to be paid directly to Plaintiff and sent
in care of Kyle J. Saunders, P.O. Box 1605, Ada, Oklahoma, 74820. If attorney’s fees are
also awarded under 42 U.S.C. § 406(b), Plaintiff’s counsel shall refund the smaller award
to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
IT IS SO ORDERED this 22nd day of February, 2017.

Although Plaintiff’s Motion refers to the possibility of obtaining additional fees for
attorney time spent in litigating her EAJA fee motion, this fees-on-fees request “is made
only in a conclusory matter,” is not mentioned at all in Plaintiff’s Reply, and has not been
supported with time statements. See Pl.’s Mot. at 4. Such request is denied. See Liggett
v. Colvin, No. CIV-1081-D, 2016 WL 6156324, at *1 & n.2 (W.D. Okla. Oct. 21, 2016)
(citing Sanders v. Astrue, 287 F. App’x 721, 723 (10th Cir. 2008)).
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