Tingley v. Astrue

Filing 28

MEMORANDUM DECISION granting in part and denying in part 25 Motion for Attorney Fees. The Court awards Plaintiff $3,222.25 in EAJA fees. Signed by Magistrate Judge Brooke C. Wells on 10/07/2013. (asp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
SCOTT TINGLEY,

v.

MEMORANDUM DECISION AND ORDER
GRANTING IN PART PLAINTIFF'S
MOTION FOR ATTORNEY FEES UNDER
THE EAJA

CAROLYN W. COLVIN,

Case No. 1:12-cv-104 BCW

Plaintiff,

Defendant.

Magistrate Judge Brooke Wells

This matter is before the Court on Plaintiff Scott Tingley’s Motion for Attorney Fees 1
pursuant to the Equal Access to Justice Act (EAJA) 28 U.S.C. §2412(d). 2 Plaintiff requests
$6,444.50 “for time spent in court” and additional time filing this motion and for costs allowed
under the EAJA and 28 U.S.C. §2420(d). 3 The EAJA provides for an award of attorney fees to a
prevailing party “unless the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust.” 4 The Commissioner argues the
position of the Government was substantially justified and therefore, an award of fees under the
EAJA is not appropriate in this case.
BACKGROUND
This case arises from an appeal from a decision of the Commissioner of Social Security
denying Plaintiff’s claims for disability benefits under the Social Security Act. On appeal the
Government argued that “(1) the controlling case law and regulations did not require the ALJ to
consider Plaintiff’s work attempts, all of which occurred prior to his alleged onset of disability date;
1

Docket no. 25.
See 28 U.S.C. § 2412(d).
3
Mtn. p. 1, docket no. 25.
4
28 U.S.C. § 2412 (d).
2

and (2) the Appeals Council considered the additional medical source opinion and reasonably
concluded, based on the relevant law and facts of the case, that it did not provide a basis for changing
the ALJ’s decision.” 5 The Court rejected these arguments and issued a decision remanding this

case for further proceedings. 6 In reversing and remanding this case, the Court found the ALJ
erred because the ALJ failed to sufficiently account for Plaintiff’s failed work attempts in
determining Mr. Tingley’s residual functional capacity. The Court also found additional error
because it was unclear from the record under the principles in Padilla v. Colvin 7 that the Appeals
Council adequately considered the additional evidence offered by Mr. Tingley after the ALJ’s
decision.
Based upon the Court’s decision, Plaintiff became the prevailing party for purposes of the
EAJA. Plaintiff now moves the court for an award of attorney fees under the EAJA in the
amount of $6,444.50. The Government does not contest the amount, or the fact that Plaintiff was
the prevailing party. But, the Government asserts that its position was substantially justified and
therefore an award of attorney fees is improper.
STANDARD
The Commissioner has the burden to show that his position was substantially justified. 8
“The term ‘position’ includes the government’s position both in the underlying agency action
and during any subsequent litigation.” 9 “The government’s success or failure on the merits at
each level may be evidence of whether its position was substantially justified, but that success or
failure alone is not determinative of the issue.” 10 “For purposes of the EAJA, the more clearly
established are the governing norms, and the more clearly they dictate a result in favor of the
5

Op. p. 2, docket no. 26.
See Memorandum Decision and Order dated June 18, 2013, docket no. 23.
7
2013 WL 1908910 (10th Cir. May 9, 2013) (slip copy).
8
See Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995).
9
Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988).
10
Id.
6

2

private litigant, the less ‘justified’ it is for the government to pursue or persist in litigation.” 11
“Conversely, if the governing law is unclear or in flux, it is more likely that the government’s
position will be substantially justified.” 12
“The test for substantial justification in this circuit is one of reasonableness in law and
fact.” 13 Accordingly, the government’s position must be “justified to a degree that could satisfy
a reasonable person.” 14 “[A] position can be justified even though it is not correct, and . . . it can
be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that
is if it has a reasonable basis in law and fact.” 15 Of note, is the distinction between the
substantial evidence standard under the Social Security Act, and the substantial justification
requirement under the EAJA. 16 As articulated by this Circuit and other circuits which have
directly addressed this issue, “equating a lack of substantial evidence with a lack of substantial
justification would result in an automatic award of attorney’s fees in all social security cases in
which the government was unsuccessful on the merits.” 17 Moreover, to hold these two standards
synonymous appears improper under the history behind the statute, 18 and at odds with the
Supreme Court’s decision in Pierce v. Underwood. 19 Thus, “a lack of substantial evidence on
the merits does not necessarily mean that the government’s position was not substantially
justified.” 20

11

Spencer v. NLRB, 712 F.2d 539, 559 (D.C.Cir. 1983).
Martinez v. Sec’y of Health & Human Servs., 815 F.2d 1381, 1383 (10th Cir. 1987).
13
Gilbert, 45 F.3d at 1394.
14
Pierce v. Underwood, 487 U.S. 552, 565 (1988)
15
Id. 487 U.S. at 552 n.2.
16
See Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir. 1988).
17
Id.
18
See Taylor v. Heckler, 835 F.2d 1037, 1044 (3d Cir. 1987) (examining the legislative history of the EAJA and
concluding Congress “left the door open to the possibility that the government could demonstrate that a denial of
disability benefits that flunked substantial evidence review was nonetheless substantially justified.”).
19
487 U.S. 552.
20
Hadden, 851 F.2d at 1269.
12

3

DISCUSSION
The EAJA provides for an award of attorney fees to a prevailing party, other than the
United States, unless the court finds that the position of the United States was substantially
justified or special circumstances make an award of fees unjust. 21 The Government argues
Plaintiff’s motion for fees should be denied for two reasons. First, the Commissioner asserts that
the language of Social Security Ruling (SSR) 96-8p requiring an ALJ to consider evidence from
attempts to work to mean unsuccessful or failed work attempts. 22 Second, the Commissioner
argues the Appeals Council’s language in rejecting the additional evidence from Teresa Ramos,
APRN was sufficient. The Appeals Council stated that it had “also considered a form from
Teresa Ramos, dated July 15, 201[sic], and records from McKay Dee Hospital, dated February 7,
2011 to January 1, 2012. We found that this information does not provide a basis for changing
the Administrative Law Judge’s decision.” 23 The Court found these two sentences were
insufficient to indicate that the Appeals Council had adequately considered the new evidence.
In opposition, Plaintiff argues the work attempts defined under SSR 96-8P are not the
same as unsuccessful work attempts cited to by the Commissioner under 20 C.F.R. §
404.1574(c). In fact, according to Plaintiff, SSR 96-8p cites to other statutory authority than that
cited to by the Commissioner in arguing that the ALJ must consider unsuccessful work attempts.
Next, Plaintiff takes issue with the standard of duty the Appeals Council had in considering the
additional evidence. Plaintiff argues that silence by the Appeals Council concerning how it
considered the evidence should not be construed that the evidence was adequately considered.
The Court finds the resolution of this matter to lie somewhere in between the position of
the two parties. First, as noted by the Court in its decision, on remand the ALJ was directed to
21

See 28 U.S.C. § 2412(d)(1)(A).
Op. p. 2-3, docket no. 26.
23
Reply p.1 fn.2, docket no. 27.
22

4

“consider those work attempts that fall within the relevant time period of Plaintiff’s alleged
disability.” 24 The regulations support consideration of work “done during any period in which
you believe you are disabled” because it may show that a claimant is able to work at the
“substantial gainful activity level.” 25 And, as shown by the parties’ arguments, there is not exact
clarity as to whether work attempts are unsuccessful work attempts, work attempts, or some
combination of both. Thus, the lack of clarity in the regulations creates a “special circumstance”
whereby a full award of EAJA fees is not warranted. Further, it is in the interest of Social
Security disability cases to gain further clarification to the applicable regulations. This is done
via the adversarial process, so the Court finds an award of some fees which help encourage
further clarity in the regulations is warranted. Therefore, the Court finds the circumstances of
this case support an award of half the fees sought by Plaintiff.
Next, whether or not the Appeals Counsel adequately considered the additional evidence
is a close call in this case. The general practice is to “take a lower tribunal at its word when it
declares that it has considered a matter.” 26 Here, however, the Court felt that under the reasoning
found in Padilla, 27 the Appeals Council’s two sentences regarding consideration of the evidence
was not enough to fall within the general practice. Thus, the Court finds the Government’s
argument asserting that the Appeals Council should be taken at its word that it did review the
evidence is “justified to a degree that could satisfy a reasonable person.” 28 Therefore an award
of EAJA fees is not supported by the Court’s second finding of error in this case.

24

Memorandum Decision and Order dated June 18, 2013 p. 4, docket no. 23.
20 C.F.R. § 404.1571.
26
Hackett v. Barnhart, 395 f.3d 1168, 1173 (10th Cir. 2005).
27
2013 WL 1908910 *2.
28
Pierce v. Underwood, 487 U.S. 552, 565 (1988)
25

5

ORDER
Based on the foregoing, the Court finds that a partial award of EAJA fees is appropriate
given the circumstances of this case. Accordingly, Plaintiff’s Motion for Attorney Fees is
GRANTED IN PART. 29 The Court awards Plaintiff $3,222.25 in EAJA fees. 30

DATED this 7 October 2013.

Brooke C. Wells
United States Magistrate Judge

29

Docket no. 25.

30

Pursuant to Astrue v. Ratliff, 130 S. Ct. 2521, 2528-29 (2010), EAJA fees awarded by this Court
belong to Plaintiff and are subject to offset under the Treasury Offset Program, 31 U.S.C. §
3716(c)(3)(B) (2006).
6