Hanaway v. Commissioner of Social Security Administration

Filing 25

ORDER granting 22 Motion for Attorney Fees and awarding attorney's fees under the EAJA in the amount of $6052.05. Signed by Honorable Charles Goodwin on 12/11/2018. (jb)

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

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Case No. CIV-17-565-G

ORDER
Plaintiff Wendy Hanaway filed this action seeking judicial review of the final
decision of the Commissioner of the Social Security Administration (“SSA”) denying her
applications for disability insurance benefits and supplemental security income. See
Compl. (Doc. No. 1). On September 18, 2018, the Court reversed and remanded the case
for further administrative proceedings. See Opinion and Order (Doc. No. 20). Plaintiff
now seeks an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. See Pl.’s Mot. (Doc. No. 22). The Commissioner opposes the motion,
arguing that her position was substantially justified and, thus, Plaintiff is not entitled to
fees. See Def.’s Resp. (Doc. No. 24).
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 based on 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
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. (Doc. No. 21) 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
As noted, it is the Commissioner’s burden to demonstrate that her position was

“substantially justified” within the meaning of the EAJA. Hackett, 475 F.3d at 1172. The
standard is ultimately “one of reasonableness in law and fact” and is satisfied where “there
is a ‘genuine dispute,’ or ‘if reasonable people could differ as to [the appropriateness of the
contested action].’” Hackett, 475 F.3d at 1172; Underwood, 487 U.S. at 565. Notably,
“[t]he government’s ‘position can be [substantially] justified even though it is not correct.”
Hackett, 475 F.3d at 1172 (citing Underwood, 487 U.S. at 566 n. 2). Thus, a decision
adverse to the government does not compel a conclusion “that the government’s efforts to
defend that decision lacked substantial justification.” Madron v. Astrue, 646 F.3d 1255,
1258 (10th Cir. 2011).
In its remand order, the Court held that the administrative law judge (“ALJ”) erred
in assessing Plaintiff’s residual functional capacity (“RFC”) by rejecting without
explanation a limitation on movement of the neck and spine recommended by Plaintiff’s
treating physician, Dr. Michael Hahn. See Opinion and Order at 5-6. The Court’s decision
was predicated on the well-settled rule that, “[a]n ALJ may reject a treating physician’s
opinion outright only on the basis of contradictory medical evidence and only if he or she
give[s] specific, legitimate reasons for doing so.” Id. (citations and quotation marks
omitted). The Commissioner argued, unsuccessfully, that the ALJ’s rejection of Dr.
Hahn’s limitation-on-movement recommendation was implicitly based on objective
medical evidence mentioned throughout her written decision, though not cited explicitly as
a basis for her partial rejection of Dr. Hahn’s opinion. See Doc. No. 15, at 3-4.
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The Court cannot conclude that the position advanced by the Commissioner was
“substantially justified” for EAJA purposes. It is beyond dispute that, in making an RFC
assessment, an ALJ may not reject the opinion of a treating position without explaining her
reasons for doing so. See, e.g., SSR 96-8p, 1996 WL 374184, at *7 (July 2, 1996) (“If the
RFC assessment conflicts with an opinion from a medical source, the adjudicator must
explain why the opinion was not adopted.”); Watkins v. Barnhart, 350 F.3d 1297, 1301
(10th Cir. 2003) (“an ALJ must ‘give good reasons in [the] notice of determination or
decision’ for the weight assigned to a treating physician’s opinion”) (citation omitted);
Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“[T]he ALJ . . . must discuss the
uncontroverted evidence he chooses not to rely upon, as well as significantly probative
evidence he rejects.”). And the ALJ’s explanation must be “apparent from the ALJ’s
decision itself.” Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007).1
Nor can the Court conclude that the Commissioner was “substantially justified” in
assuming the position that any error committed by the ALJ was harmless. As detailed in
the Court’s remand order, the Vocational Expert—on whose testimony the ALJ based her

The Commissioner cites Endriss v. Astrue, 506 F. App’x 772 (10th Cir. 2012) in support
of her position. See Def.’s Resp. at 5-6. In Endriss, the Court declined to find legal error
where the ALJ gave little weight to portions of a treating physician’s opinion due to its
inconsistency with other medical evidence in the record but failed to provide a
contemporaneous discussion of the inconsistent evidence, instead merely citing exhibit
numbers. The Court looked to an early portion of the ALJ’s decision for the ALJ’s
discussion of the cited evidence, noting that, “[r]eading the ALJ’s decision as a whole, the
ALJ adequately explained how the objective medical evidence [was inconsistent with the
treating physician’s opinion].” Endriss, 506 F. App’x at 775-76. Unlike in Endriss,
however, the ALJ in this case stated that Dr. Hahn’s opinion was consistent with the record
as a whole and assigned great weight to the opinion without reservation.
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finding that Plaintiff could perform her past relevant work—unreservedly testified that a
limitation in the ability to look up and down due to severe neck problems was incompatible
with performance of Plaintiff’s past relevant work. See Opinion and Order, at 8.
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), (d)(1)(B), (d)(2)(A).
Plaintiff seeks an attorney’s fee award of $6052.05, calculated as follows:
• 28.4 attorney hours for work performed in 2017, at a rate of $197.00 per hour; .25
attorney hours for work performed in 2018, at a rate of $201.00 per hour; and
• 3.7 paralegal hours for work performed in 2017, at a rate of 110.00 per hour.
See Pl.’s Ex. 1 (Doc. No. 22-1) at 1-3. 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)(2)(A). Plaintiff has requested an upward adjustment of this
statutory rate, and Defendant does not challenge the hourly fee requested by Plaintiff.
Plaintiff therefore is entitled to an upward adjustment of the statutory rate consistent with
the evidence provided.
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

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hourly rate of $110.00 for paralegal work performed in 2017. See Pl.’s Ex. 1, at 3.
Defendant does not object to this proposed hourly rate, and the Court finds that it is
consistent with or lower than the prevailing market rates in the Western District of
Oklahoma for these time periods. See Vincent v. Berryhill, 247 F. Supp. 3d 1228, 1232-33
(W.D. Okla. Mar. 27, 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. No. 22) and awards attorney’s fees under the
EAJA in the amount of $6052.05. Such fees are to be paid by the Commissioner to Wendy
Hanaway, subject to offset for debts owed to the federal government, if any, in accordance
with the United States Supreme Court’s decision in Astrue v. Ratliff, 560 U.S. 586 (2010).
If attorney’s fees are also awarded under 42 U.S.C. § 406(b), Plaintiff’s counsel, if having
received the fees awarded herein, 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 11th day of December, 2018.

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