Kerr v. Commissioner of the Social Security Administration
MEMORANDUM OPINION AND ORDER -- The Court GRANTS Plaintiff's Motions for Attorney's Fees ECF Nos. 25 & 28 as more fully set out in order. Signed by Magistrate Judge Shon T. Erwin on 11/22/17. (mc)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Case No. CIV-16-1417-STE
MEMORANDUM OPINION AND ORDER
Before the Court are Plaintiff’s Application for Award of Attorney’s Fees Pursuant
to the Equal Access to Justice Act 28 U.S.C. § 2412 (ECF No. 25) and Plaintiff’s
Supplemental Application for Award of Attorney’s Fees Pursuant to the Equal Access to
Justice Act 28 U.S.C. § 2412 (ECF No. 28). Specifically, Plaintiff seeks an award of fees in
the amount of $6,109.30 (ECF Nos. 25 & 28). Defendant objects to any award of fees,
arguing that her position was “substantially justified.” (ECF No. 23). The Court rejects
Defendant’s argument and GRANTS an award of fees to Plaintiff in the amount
ATTORNEY FEES AUTHORIZED UNDER EAJA
EAJA entitles a prevailing party to recover reasonable attorney fees from the
government “‘unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award unjust.’” Al–Maleki v.
Holder, 558 F.3d 1200, 1204 (10th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)). The
test for “substantial justification” is one of “reasonableness in law and fact.” Hackett v.
Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). In other words, “the government’s
position must be “justified to a degree that could satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, (1988).
Once an EAJA application is filed, the government must justify both its position in
any underlying administrative proceedings and in any subsequent court litigation. See
Hackett v. Barnhart, 475 F.3d 1166, 1170 (10th Cir. 2007); 28 U.S.C. § 2412(d)(2)(D)
(explaining that the “position of the United States” is “in addition to the position taken by
the United States in the civil action, the action or failure to act by the agency upon which
the civil action is based.”). Therefore, fees should generally be awarded where the
agency’s underlying action was unreasonable even if the government advanced a
reasonable litigation position. Id. at 1174. The burden rests with the government to prove
that its position was substantially justified. Kemp v. Bowen, 822 F.2d 966, 967 (10th Cir.
PLAINTIFF IS THE PREVAILING PARTY
Previously, the undersigned ordered reversal of the Commissioner’s decision
denying Plaintiff’s application for disability insurance benefits and a remand for further
administrative proceedings. (ECF Nos. 23 & 24). With the reversal and remand, Ms. Kerr
is considered the “prevailing party” for purposes of EAJA. See Shalala v. Schaefer, 509
U.S. 292 (1993). Thus, the only issues are whether the government’s position was
“substantially justified” and whether any special circumstances exist which would prevent
an award of benefits.
PLAINTIFF IS ENTITLED TO AN AWARD OF BENEFITS
The Court’s reversal was based on the ALJ’s improper evaluation of opinions from
a physician’s assistant, Krista Braud. (ECF No. 23:4-9). Ms. Braud had treated Plaintiff for
over three years, noting that Ms. Kerr suffered from hip pain and peripheral neuropathy.
(ECF No. 23:5). Ms. Braud also noted that Plaintiff suffered from an unsteady gait, which
prompted Ms. Braud to prescribe Plaintiff a rolling walker. (ECF No. 23:5).
Although the ALJ mentioned Ms. Braud, he omitted any discussion of her findings
that Plaintiff had suffered from an unsteady gait and required an assistive device to
ambulate. See ECF No. 25:6-9. As the Court explained, the ALJ erred in failing to discuss
Ms. Braud’s opinion which conflicted with the RFC determination which allowed for
standing and walking 6 hours during an 8-hour workday with no accommodation for Ms.
Kerr’s use of an assistive device. (ECF No. 25:6-9).
In arguing that the Commissioner’s position was “substantially justified,” Ms. Berryhill
reiterates the argument she made on appeal, citing various medical records and arguing
that as a whole, the records supported the RFC determination. (ECF. No. 26:4-5). But the
issue before the Court was the ALJ’s treatment of Ms. Braud’s opinion, not whether the RFC
was supported by substantial evidence. As the Court stated, the ALJ has a duty to explain
the weight given to “other source,” evidence, to “ensure that the discussion of the
evidence in the determination or decision allows a claimant or subsequent reviewer to
follow the adjudicator’s reasoning[.]” (ECF No. 23:7, citing Titles II and XVI: Considering
Opinions and Other Evidence from Sources Who are not “Acceptable Medical Sources” in
Disability Claims; Considering Decisions on Disability by Other Governmental and
Nongovernmental Agencies, 2006 WL 2329939, at *6 (SSR 06-3p)). The ALJ committed
legal error in failing to explain his treatment of Ms. Braud’s opinions. (ECF No. 23:7-9).
Due to the legal error, the Court remanded the case for a re-evaluation of Ms.
Braud’s opinion. (ECF No, 23:9). Until the ALJ properly evaluates Ms. Braud’s opinion, a
finding on whether the RFC was supported by substantial evidence cannot be made, as
the re-examination of the opinion could affect the ultimate RFC findings. Accordingly, the
Court finds Ms. Berryhill’s argument unconvincing and concludes that her position was
not “substantially justified.” Accordingly, the Court finds that an award of EAJA fees is
AMOUNT OF RECOVERABLE FEE
Ms. Berryhill did not meet her burden of proof to show that the government’s
position was “substantially justified.” Further, the undersigned knows of no special
circumstances which would make an award of attorney fees unjust. Thus, the only
remaining issue concerns the reasonableness of the fee requested.
Plaintiff seeks an attorney fee award of $6,109.30, calculated as follows: 2.9 hours
of work performed by her attorney in 2016 at a rate of $193.00 per hour ($559.70), 1.4
hours of paralegal work performed in 2016 and 2017 at a rate of $100.00 per hour,
($140.00), and 27.6 hours of work performed by her attorney in 2017 at a rate of $196.00
per hour, ($5,409.60) (ECF Nos. 25-4 & 28-1). Ms. McKnight has provided a detailed
breakdown of time expended in representing Ms. Kerr, and the undersigned finds that
this uncontroverted statement reflects a reasonable amount of time for this matter.
However, an award under EAJA is limited to $125.00 per hour unless the court determines
that an increase in the cost of living or another special factor justifies a higher fee. 28
Ms. McKnight has requested an upward adjustment of the statutory rate for
attorney fees and has provided supporting documentation in the form of a letter dated
August 3, 2017, from the Office of the General Counsel of the Social Security
Administration. (ECF No. 25-2). This letter shows that for 2016 and 2017, the authorized
maximum hourly rate for attorney work in Oklahoma was $193.00 and $196.00,
respectively. (ECF No. 25-2). Thus, Ms. Kerr is entitled to an upward adjustment of the
hourly attorney fee consistent with the evidence provided. Additionally, Plaintiff is entitled
to recover paralegal fees at prevailing market rates. See Richlin Sec. Serv. Co. v. Chertoff,
553 U.S. 571, 581 (2008). Plaintiff has submitted the hourly paralegal rate as $100.00
for 2016 and 2017 and Ms. Berryhill has not objected. Therefore, the Court concludes
that this hourly rate is reasonable and within the acceptable prevailing market rate.
The Court therefore finds that the Plaintiff is entitled to a total attorney fee award
in the amount of $6,109.30. Said fee is payable to the Plaintiff. See Astrue v. Ratliff,
130 S.Ct. 2521, 2524 (2010). If attorney fees are also awarded under 42 U.S.C. § 406(b)
of the Social Security Act, Plaintiff’s counsel is to refund the smaller amount to Plaintiff.
Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
The Court GRANTS Plaintiff’s Motions for Attorney’s Fees (ECF Nos. 25 & 28)
in the amount of $6,109.30.
ENTERED on November 22, 2017.
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