Walker v. Commissioner of Social Security

Filing 29

ORDER granting 26 Motion for Attorney Fees, as more fully set out. Signed by Honorable David L. Russell on 2/28/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ORLANDO WALKER,
Plaintiff,
v.
NANCY BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

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Case No. CIV-15-1353-R

ORDER
Before the Court is Plaintiff Orlando Walker’s Motion for Attorney’s Fees under
the Equal Access to Justice Act (“EAJA”). Doc. 26. Defendant Nancy Berryhill has filed a
response. Doc. 28. For the reasons that follow, Plaintiff’s Motion is GRANTED.
Discussion
Plaintiff’s Motion is for fees incurred in bringing a civil action appealing an
administrative determination of the Social Security Administration that Plaintiff was not
disabled for purposes of the Social Security Act. United States Magistrate Judge Bernard
M. Jones recommended that the Commissioner’s decision be reversed and remanded. Doc.
23. This Court then adopted the Report and Recommendation. Doc. 24.
Arguing that the position of the Defendant has not been substantially justified,
Plaintiff now requests an award of $5,398.80 for attorney’s fees incurred in this civil action
at a request rate of $192.00 per hour for attorney services and $110.00 per hour for
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paralegal services, all pursuant to the EAJA, 28 U.S.C. § 2412. Defendant objects to
Plaintiff’s EAJA fee request—not on the basis that the Defendant was substantially
justified in its position—but on the grounds that special circumstances exist that support
denying or reducing an award under the EAJA.
An EAJA award may be denied or reduced if “special circumstances make an award
unjust.” 28 U.S.C. § 2412(d)(1)(A). Though this statute does not define “special
circumstances” or “unjust,” the Eighth Circuit has explained that equitable considerations
should inform a court’s decision in this area. See U.S. Dept. of Labor v. Rapid Robert’s
Inc., 130 F.3d 345, 347 (8th Cir. 1997) (citing Oguachuba v. INS, 706 F.2d 93, 98 (2d Cir.
1983) (“the EAJA thus explicitly directs a court to apply traditional equitable principles”)).
In a similar vein, one court has found that an award should be reduced to reflect the
plaintiff’s reduced contribution to his or her ultimate victory. See Firstland Intern, Inc. v.
INS, 264 F. App’x 22, 25 (2d Cir. 2008) (“Plaintiffs’ only contribution to their ultimate
victory in the underlying case was the supplemental brief they submitted at this Court’s
request. We conclude that an award of fees for any amount greater than the cost of
preparing that supplemental brief would be unjust.”).
Defendant argues that special circumstances warrant a denial of attorney’s fees here
because Plaintiff failed to identify the specific grounds that eventually led the Court to
remand. Plaintiff had two grounds for appealing the Commissioner’s decision denying him
disability insurance benefits. His first ground was the one that ultimately led the Court to
reverse and remand the Commissioner: that the Vocational Expert’s testimony did not
match that of the Residual Functional Capacity (“RFC”). As Plaintiff pointed out, the ALJ
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determined that because of Plaintiff’s bad left shoulder he should only do “occasional”
reaching with his left arm and shoulder. The ALJ then asked the VE about which jobs
Plaintiff would be able to do given this limitation; the VE answered that Plaintiff could still
do the jobs of bench assembler, electronic equipment assembler, and press machine
operator. The problem with this answer, Plaintiff argued, was that the Dictionary of
Occupational Titles classifies these jobs as requiring frequent, not occasional, reaching.
While the Magistrate agreed with the Plaintiff’s broader notion that the VE’s
testimony did not match that of Plaintiff’s RFC, he recommended reversal and remand on
a slightly different basis than that of the distinction between occasional and frequent
reaching as offered by Plaintiff. According to the Magistrate, the problem with the VE’s
testimony and the ALJ’s RFC determination was the distinction between reaching and
lifting. The Magistrate correctly noted that “an ALJ must inquire about and resolve any
conflicts between a [VE’s] testimony regarding a job and the description of that job in the
[DOT].” Poppa v. Astrue, 569 F.3d 1167, 1173–1174 (10th Cir. 2009). At the hearing,
however, the ALJ presented a hypothetical to the VE that included a limitation to lifting
rather than Plaintiff’s actual disability—being able to reach only occasionally with his left
arm:
VE: Sir, if you could clarify; the hypothetical stated
occasionally lifting with the left shoulder?
ALJ: Uh-huh. In other words, up to a third of the time. He can
lift with his right arm and assist with his left but . . . he’s had
some medical conditions in the past that probably preclude
bilateral lifting.

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VE: Okay. Thank you, sir. The DOT does not address bilateral
lifting . . . Based upon my experience, I would conclude that he
could perform jobs such as bench assembler . . . assembler,
electrical equipment . . . and a press machine operator.
ALJ: Okay. Does the evidence that you have provided conflict
with information in the DOT?
VE: Other than the notion of bilateral lifting and the use of the
upper extremities, no, sir.
Doc. 23, at 5 (emphasis added).
This, the Magistrate found, was error: the ALJ failed to elicit any testimony from the VE
about reaching, despite the fact that the ALJ’s physical RFC determination found that
Plaintiff could only occasionally reach with the left shoulder. The Magistrate nonetheless
recommended reversal and remand, noting that the error claimed by Plaintiff—an
inconsistency between the VE’s testimony and the RFC—nonetheless encompassed this
discrepancy between reaching and lifting.
Defendant’s argument is that Plaintiff should therefore be denied attorney’s fees
since he failed to argue that this reaching/lifting distinction warranted reversal and remand.
To be sure, it is a close call. Plaintiff’s brief portrayed the problem as being that the VE,
when asked about jobs that Plaintiff could do given his ability to reach with his left arm
only occasionally, listed jobs that require frequent reaching. That said, the Magistrate did
not find that that error was harmless or that Plaintiff’s argument was incorrect; rather he
noted that an ALJ’s hypotheticals to the VE must precisely relate the impairments borne
out by the evidentiary record, and the ALJ had failed to explore Plaintiff’s reaching
limitation with the VE. Simply put, and as Plaintiff has argued, there was still a discrepancy
between the VE’s testimony and Plaintiff’s RFC, meaning the ALJ’s finding were not
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supported by substantial evidence. The Court therefore finds that no special circumstances
exist which would justify denying or reducing an award of attorney’s fees to Plaintiff.
The Court therefore, per Plaintiff’s request, grants an award of $5,398.90 for
attorney’s fees at a rate of $192.00 per hour and $110 per hour for paralegal services, which
are to be paid directly to Plaintiff, in care of his attorney. In the event the EAJA fees
awarded are paid to Plaintiff’s counsel and Plaintiff’s counsel later recovers fees pursuant
to 42 U.S.C. § 406(b), Plaintiff’s counsel shall refund the smaller award of attorney’s fees
to Plaintiff as required by Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986)
IT IS SO ORDERED this 28thday of February 2018.

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