Truman v. Astrue
Filing
28
MEMORANDUM DECISION granting in part and denying in part 25 Motion for Attorney Fees. Signed by Magistrate Judge Paul M. Warner on 11/03/2014. (tls)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
LANDON TRUMAN,
Plaintiff,
v.
MEMORANDUM DECISION
AND ORDER
Case No. 1:12-cv-192-PMW
CAROLYN W. COLVIN, Acting
Commissioner of Social Security, 1
Defendant.
Magistrate Judge Paul M. Warner
All parties in this case have consented to United States Magistrate Judge Paul M. Warner
conducting all proceedings, including entry of final judgment, with appeal to the United States
Court of Appeals for the Tenth Circuit. 2 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Before the
court is Landon Truman’s (“Plaintiff”) motion for attorney fees pursuant to the Equal Access to
Justice Act (“EAJA”). 3 The court has carefully reviewed the written memoranda submitted by
the parties. Pursuant to civil rule 7-1(f) of the Rules of Practice for the United States District
1
On February 14, 2013, Carolyn W. Colvin (“Commissioner”) became the Acting Commissioner
of Social Security. Accordingly, she has been automatically substituted for Michael J. Astrue as
the defendant in this action. See 42 U.S.C. § 405(g) (“Any action instituted in accordance with
this subsection shall survive notwithstanding any change in the person occupying the office of
Commissioner of Social Security or any vacancy in such office.”); Fed. R. Civ. P. 25(d) (“An
action does not abate when a public officer who is a party in an official capacity dies, resigns, or
otherwise ceases to hold office while the action is pending. The officer’s successor is
automatically substituted as a party.”).
2
See docket no. 14.
3
See docket no. 25.
Court for the District of Utah, the court has concluded that oral argument is not necessary and
will determine the motion on the basis of the written memoranda. See DUCivR
7-1(f).
BACKGROUND
On March 29, 2009, Plaintiff applied for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act, see 42 U.S.C. §§ 401-434, and Supplemental Security Income
(“SSI”) under Title XVI of the Social Security Act, see id. §§ 1381-1383f, alleging disability
beginning on December 23, 2007. 4 Plaintiff’s applications were denied initially and upon
reconsideration. 5 On April 1, 2010, Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”), 6 and that hearing was held on May 16, 2011. 7 On July 1, 2011, the ALJ issued a
written decision denying Plaintiff’s claim for DIB and SSI. 8 On August 29, 2012, the Appeals
Council denied Plaintiff’s request for review, 9 making the ALJ’s decision the Commissioner’s
final decision for purposes of judicial review. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R.
§§ 404.981, 416.1481.
4
See Administrative Record (“Tr.
5
See Tr. 68-69, 73-74.
6
See Tr. 90-91.
7
See Tr. 41-67.
8
See Tr. 18-40.
9
See Tr. 1-6.
”) 131-45.
2
On September 17, 2012, Plaintiff filed his complaint in this case seeking judicial review
of the Commissioner’s final decision. 10 On May 27, 2014, this court issued a memorandum
decision and order (“Order”) reversing the Commissioner’s final decision and remanding this
case for further administrative proceedings. 11 Although Plaintiff raised numerous challenges to
the ALJ’s decision on appeal, the court addressed only one issue in the Order because it was
dispositive of Plaintiff’s appeal. The court concluded that the ALJ erred by failing to provide
any analysis concerning the weight he assigned to the opinions of one of Plaintiff’s treating
physician’s, Dr. Chris Lang (“Dr. Lang”), as required by the relevant regulations and Tenth
Circuit case law. See 20 C.F.R. §§ 404.1527(c), 416.927(c); see also Langley v. Barnhart, 373
F.3d 1116, 1119 (10th Cir. 2004). The judgment in this case was entered on May 28, 2014. 12
On August 16, 2014, Plaintiff filed the motion for attorney fees currently before the court.
Along with the motion, Plaintiff filed a copy of the attorney fee agreement Plaintiff and his
counsel both signed. In that agreement, Plaintiff assigned his right to any EAJA attorney fees to
his counsel. The Commissioner opposes Plaintiff’s motion.
ANALYSIS
The EAJA provides for an award of attorney fees and other expenses to a prevailing
party, as follows:
Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to
10
See docket no. 3.
11
See docket no. 23.
12
See docket no. 24.
3
subsection (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any
court having jurisdiction of that 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).
[T]he Commissioner ha[s] the burden of proof to show that
[his] position was substantially justified. The test for substantial
justification in this circuit is one of reasonableness in law and fact.
Thus, the [Commissioner’s] position must be justified to a degree
that could satisfy a reasonable person. The [Commissioner’s]
position can be justified even though it is not correct.
Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007) (quotations and citations omitted). In
determining whether the Commissioner’s position was substantially justified, the court must
examine both the underlying agency’s conduct and the Commissioner’s defense of that conduct
on appeal in the district court. See 28 U.S.C. § 2412(d)(2)(D).
The EAJA also provides that
[a] party seeking an award of fees and other expenses shall, within
thirty days of final judgment in the action, submit to the court an
application for fees and other expenses which shows that the party
is a prevailing party and is eligible to receive an award under this
subsection, and the amount sought, including an itemized
statement from any attorney or expert witness representing or
appearing in behalf of the party stating the actual time expended
and the rate at which fees and other expenses were computed. The
party shall also allege that the position of the United States was not
substantially justified. Whether or not the position of the United
States was substantially justified shall be determined on the basis
of the record (including the record with respect to the action or
failure to act by the agency upon which the civil action is based)
which is made in the civil action for which fees and other expenses
are sought.
4
Id. § 2412(d)(1)(B). The thirty-day period for applying for attorney fees under the EAJA runs
from the date the judgment is final and not appealable. See id. § 2412(d)(2)(G).
In his motion, which was filed within the requisite thirty-day period referenced above,
Plaintiff argues that he is entitled to an award of $8369.14 for attorney fees pursuant to the EAJA
and has included the required itemized statement of fees. Plaintiff asserts that he is the
prevailing party and that the position of the Commissioner in this case was not substantially
justified. Plaintiff further contends that the fees sought are reasonable. In his reply
memorandum, Plaintiff requests additional attorney fees of $593.15 incurred in preparing that
reply memorandum. See, e.g., Rose-Velasquez v. Astrue, No. 2:06-cv-297 TS, 2008 WL
1765659, at *2 (D. Utah Apr. 16, 2008) (unpublished) (determining that an award of fees
incurred as a result of the dispute over the amount of proper fees was appropriate). Finally,
pursuant to his assignment agreement with his counsel, Plaintiff asserts that the total attorney fee
award of $8962.29 should be paid directly to his counsel.
In response, the Commissioner does not argue that Plaintiff is not the prevailing party or
that there are special circumstances that make an award of fees unjust. Instead, the
Commissioner argues that her position in this case was substantially justified. The
Commissioner contends that she was substantially justified in arguing that Dr. Lang did not offer
an opinion about Plaintiff’s functional limitations that was required to be weighed in accordance
with the relevant regulations. See 20 C.F.R. §§ 404.1527(c), 416.927(c); see also Langley, 373
F.3d at 1119. The Commissioner also argues that if attorney fees are to be awarded in this case,
they should be awarded directly to Plaintiff, not to Plaintiff’s counsel.
5
The court has determined that the Commissioner’s argument concerning substantial
justification is without merit. While it is true that the Commissioner’s position can be justified
even if it is not correct, see Hackett, 475 F.3d at 1172, the court has determined that principle
does not apply here. As noted by Plaintiff, contrary to the Commissioner’s argument, Dr. Lang
did indeed offer some opinions about Plaintiff’s functional limitations. Accordingly, the court
cannot say that the Commissioner’s position on appeal was substantially justified. Furthermore,
and in light of the fact that Dr. Lang did offer some opinions about Plaintiff’s functional
limitations, the court concludes that the ALJ’s failure to provide any analysis of the weight he
assigned to Dr. Lang’s opinions was not substantially justified.
Having determined that the Commissioner’s position was not substantially justified, the
court turns to the issue of the payment of attorney fees under the EAJA in this case. The court
concludes that the award of attorney fees under the EAJA must be paid to directly to Plaintiff,
rather than to Plaintiff’s counsel. That conclusion is consistent with case law from the Tenth
Circuit. See Brown v. Astrue, 271 Fed. App’x 741, 743 (10th Cir. 2008) (unpublished) (“The
district court correctly held that [the plaintiff’s] assignment of his right in the fees award to
counsel does not overcome the clear EAJA mandate that the award is to him as the prevailing
party, and the fees belong to him. Thus, the district court correctly declined to award the fees
directly to counsel.”); Manning v. Astrue, 510 F.3d 1246, 1249-55 (10th Cir. 2007) (holding
based on statutory language, legislative history, and case law, that an attorney fee award under
the EAJA is to the prevailing party and not to the prevailing party’s counsel).
Finally, although not challenged by the Commissioner, the court concludes that the
attorney fees sought by Plaintiff are reasonable.
6
CONCLUSION AND ORDER
Based on the foregoing, Plaintiff’s motion for attorney fees pursuant to the EAJA 13 is
GRANTED IN PART AND DENIED IN PART. The Commissioner shall pay Plaintiff an
award of attorney fees under the EAJA attorney fee award of $8962.29, but that award shall be
payable directly to Plaintiff, not to his counsel.
IT IS SO ORDERED.
DATED this 3rd day of November, 2014.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
13
See docket no. 25.
7
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