Prince v. Colvin

Filing 31

ORDER granting 27 Motion for Attorney Fees and awarding attorney's fees under the EAJA in the amount of $6477.00. Signed by Magistrate Judge Charles B Goodwin on 03/09/2018. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
SUSAN GAIL PRINCE,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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Case No. CIV-15-933-CG

ORDER
On September 11, 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 Prince v. Berryhill, No.
CIV-15-933-CG, 2017 WL 3977926 (W.D. Okla. Sept. 11, 2017). Plaintiff Susan Gail
Prince now moves for an award of attorney’s fees in the amount of $6477.00 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 multiple errors. First,

the ALJ failed to address Plaintiff’s documented vision problems but found that Plaintiff
was able to perform past relevant work that requires reading and frequent near visual acuity
and, alternatively, two jobs that require frequent near visual acuity. See Prince, 2017 WL
3977926, at *2-3. Next, the ALJ’s decision failed to reflect that he properly considered all
of the evidence in the record regarding Plaintiff’s back and leg pain and did not properly
resolve the evidentiary inconsistency between certain records. See id. at *3-5. Relatedly,
the ALJ failed to adequately explain his assessment that Plaintiff was able to stand and/or
walk six hours out of an eight-hour workday in light of contradictory medical records and
postdecision evidence that was accepted into record by the SSA Appeals Council. See id.
at *5-6.
Reversal therefore was required based upon a lack of substantial evidence to uphold
the ALJ’s residual functional capacity determination. See id. at *6-7. The Court declined
to address other propositions of error raised by Plaintiff. See id. at *6 n.9, *7 (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 2-7; 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.”). While thorough, the ALJ’s assessment of the evidence
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reflected legal errors and resulted in a residual functional capacity assessment that lacked
substantial evidence and did not comport with Tenth Circuit authority in multiple respects.
See Prince, 2017 WL 2017 WL 3977926, at *2-6. Defendant now 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 27; 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 implies that fees should not be awarded because Defendant raised
reasonable arguments in this Court as to why the ALJ’s errors were harmless. See Def.’s
Obj. at 7. “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 unsuccessfully) argues in litigation that the ALJ’s errors were harmless.” Groberg v.
Astrue, 505 F. App’x 763, 765 (10th Cir. 2012). Defendant, however, conceded no error
in the ALJ’s decision and did not argue that any relevant errors in the ALJ’s assessment
should be overlooked as harmless. See Def.’s Br. (Doc. No. 24) at 5-15. Rather, Defendant
contended consistently that the ALJ’s consideration of the evidence was proper and all
relevant findings in the decision were entirely supported by substantial evidence. See id.
at 5-7, 9-15. Defendant thus has not shown that her litigation position “cured unreasonable

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agency action.” Groberg, 505 F. App’x at 768 (alteration and internal quotation marks
omitted).
Defendant has not shown that this case is “exceptional” or that the United States’
position before the SSA and this Court was substantially justified. Id. at 765, 768; see 28
U.S.C. § 2412(d)(1)(A), (B), (d)(2)(D).
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 $6477.00, calculated as follows:
 3.5 attorney hours for work performed in 2015, at a rate of $190.00 per hour; 24.0
attorney hours for work performed in 2016, at a rate of $193.00 per hour; and 3.0
attorney hours for work performed in 2017, at a rate of $196.00 per hour; and
 3.4 paralegal hours for work performed in 2015, at a rate of $100.00 per hour; 0.5
paralegal hours for work performed in 2016, at a rate of $120.00 per hour; and 1.6
paralegal hours for work performed in 2017, at a rate of $120.00 per hour.
See Pl.’s Suppl. Ex. 1 (Doc. No. 30-1) at 1-6. 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
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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 Suppl. Ex. 2 (Doc. No. 30-2), Mem. from
Denver OGC Office to Pls.’ Att’ys Handling Soc. Security Litig. in Okla. & 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.
Plaintiff also may recover “paralegal fees from the Government at prevailing market
rates.” Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590, (2008). Plaintiff requests an
hourly rate of $100.00 for paralegal work performed in 2015 and an hourly rate of $120.00
for paralegal work performed in 2016 and 2017. See Pl.’s Suppl. Ex. 1, at 1-2, 3, 5.
Defendant does not object to these proposed hourly rates, and the Court finds that they are
consistent with the prevailing market rates in the Western District of Oklahoma for these
time periods. See Vincent v. Berryhill, 247 F. Supp. 3d 1228, 1233 (W.D. Okla. 2017).
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
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unjust in this case; and (4) the amount of the fee requested is reasonable. The Court
therefore GRANTS Plaintiff’s Motion (Doc. No. 27) and awards attorney’s fees under the
EAJA in the amount of $6477.00, with said amount to be paid directly to Plaintiff and sent
in care of Gayle L. Troutman, 1350 S. Boulder Avenue, Suite 410, Tulsa, Oklahoma,
74119. 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 9th day of March, 2018.

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