Murray v. Commissioner of Social Security
Filing
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ORDER granting 27 Motion for Attorney Fees, granting 30 Motion for Attorney Fees and awarding attorney's fees under the EAJA in the amount of $5733.30. Signed by Magistrate Judge Charles B Goodwin on 03/30/2018. (jb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JAMES EDWARD MURRAY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.
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Case No. CIV-15-364-CG
ORDER
On September 12, 2017, the Court entered a Judgment reversing the decision of the
Commissioner of the Social Security Administration (“SSA”) and remanding this case for
further administrative proceedings. See J. (Doc. No. 26); see also Murray v. Berryhill, No.
CIV-15-364-CG, 2017 WL 4010868 (W.D. Okla. Sept. 12, 2017). Plaintiff James Edward
Murray now moves for an award of attorney’s fees in the amount of $5733.30 pursuant to
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See Pl.’s Mot. Att’y Fees
(Doc. No. 27); Pl.’s Suppl. (Doc. No. 30). Defendant has objected to the Motion (Def.’s
Obj. (Doc. No. 28)), and Plaintiff has replied (Pl.’s Reply (Doc. No. 29)).
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
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 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
“prevailing party” for purposes of the EAJA. See J. at 1; 28 U.S.C. § 2412(d)(2)(B);
Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993).
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III.
Whether the Government Has Shown Its Position Was Substantially Justified
In the administrative proceedings below, the ALJ committed legal error by failing
to adequately link his credibility determination to substantial evidence. See Murray, 2017
WL 4010868, at *2-6. Reversal was therefore required. The Court declined to address
other propositions of error raised by Plaintiff. See id. at *6 (quoting Watkins v. Barnhart,
350 F.3d 1297, 1299 (10th Cir. 2003).
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 Obj. at 1-7; 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.”). Defendant repeats the arguments previously made in
support of affirmance but does not show “a reasonable basis in law and in fact” for the
ALJ’s denial of benefits. Hadden, 851 F.2d at 1267; see Def.’s Obj. at 5-6.
Defendant argues that the government’s position was substantially justified in light
of Tenth Circuit case law proposing that courts not “insist on technical perfection” in ALJ
decisions. Def.’s Obj. at 5 (citing Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th Cir.
2012)); see also Davis v. Erdmann, 607 F.2d 917, 918 n.1 (10th Cir. 1979); Wall v. Astrue,
561 F.3d 1048, 1068 (10th Cir. 2009). Moreover, Defendant argues that the Tenth Circuit
has “recently upheld a district court’s determination that the Commissioner was
substantially justified under similar circumstances where the basis for remand was that the
ALJ’s articulation was less than ideal,” though this case involved articulation of the weight
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accorded a medical opinion, not articulation in the credibility analysis. Def.’s Obj. at 6
(citing Hays v. Berryhill, 694 F. App’x 634 (10th Cir. 2017)).
The ALJ’s credibility determination, however, did not comport with Tenth Circuit
authority requiring that credibility determinations be “closely and affirmatively linked” to
substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995); Wilson v. Astrue,
602 F.3d 1136, 1144 (10th Cir. 2010); Murray, 2017 WL 4010868, at *3-6. Moreover,
Defendant’s arguments ignore the fact that, in addition to the ALJ’s error of failing to
articulate the link between the credibility determination and substantial evidence, the ALJ
also took facts out of context. See Murray, 2017 WL 4010868, at *4-5; Sisco v. U.S. Dep’t
of Health & Human Serv., 10 F.3d 739, 743 (10th Cir. 1993) (explaining that an ALJ cannot
support his credibility analysis “by taking Plaintiff’s testimony out of context and
selectively acknowledging parts of her statements while leaving important segments out”);
Phillips v. Colvin, No. CIV-13-61-D, 2014 WL 1689686, at *2-4 (W.D. Okla. April 29,
2014). The mischaracterization of evidence to support an adverse credibility determination
is sufficient to preclude a finding of substantial justification, even where there is a genuine
dispute regarding whether substantial evidence supported the credibility determination.
See, e.g., Sitsler v. Astrue, No. CIV-08-592-PJC, 2011 WL 1694452, at *1 (N.D. Okla.
May 4, 2011); Whelan v. Colvin, No. CIV-15-129-R, 2016 WL 5210755, at *1-2 (W.D.
Okla. Aug. 3, 2016) (R. & R.), adopted, 2016 WL 5210802 (Sept. 21, 2016).
Defendant has not shown that the United States’ position before the SSA and this
Court was substantially justified. 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 $5733.30, calculated as follows: 27 hours
of work performed by his attorney in 2015 at a rate of $190.00 per hour; 0.6 hours of work
performed by his attorney in 2016 at a rate of $193.00 per hour; and 2.5 hours of work
performed by his attorney in 2017 at a rate of $195.00 per hour. See Pl.’s Mot. Att’y Fees
Ex. 1 (Doc. No. 27-1) at 2; Pl.’s Suppl. Ex. 1 (Doc. No. 30-1) at 1. 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 id.
An attorney’s fee award under the EAJA is limited to $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, and Defendant does not 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, $193.00 is a reasonable hourly rate for work performed in 2016, and
$196.00 is a reasonable hourly rate for work performed in 2017 on Social Security cases
in the Western District of Oklahoma. See Pl.’s Mot. Att’y Fees Ex. 3 (Doc. No. 27-3),
Mem. from Denver OGC Office to Pls.’ Att’ys Handling Soc. Security Litig. in Okla. &
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N.M. (Aug. 3, 2017). Plaintiff therefore is entitled to an upward adjustment of the statutory
rate consistent with the evidence provided and judicially noticed.
In addition, an award of the fees requested in Plaintiff’s Supplement (to which
Defendant filed no objection) is appropriate under Commissioner, Immigration &
Naturalization Service v. Jean, 496 U.S. 154 (1990). See Vincent, 247 F. Supp. 3d at 122930; Hull v. Berryhill, No. 2017 WL 2023765, at *2-3 (W.D. Okla. May 23, 2017).
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; (3) there are no special circumstances that make an award of fees
unjust in this case; and (4) the amount of the fee requested is reasonable. The Court
therefore GRANTS Plaintiff’s Motion (Doc. Nos. 27, 30) and awards attorney’s fees under
the EAJA in the amount of $5733.30, with said amount to be paid directly to Plaintiff and
sent in care of Casey L. Saunders, P.O. Box 2318, Ada, Oklahoma, 74821. 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 30th day of March, 2018.
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