Henderson v. Astrue
Filing
33
MEMORANDUM DECISION granting 32 Motion for Attorney Fees in the amount of $14,608.27. The EAJA fees shall be made payable to Plaintiff. Signed by Judge Dale A. Kimball on 2/27/13. (jlw)
_____________________________________________________________________________
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
TYLER HENDERSON,
Plaintiff,
MEMORANDUM DECISION AND
ORDER
v.
MICHAEL ASTRUE, in his capacity as
Commissioner of the Social Security
Administration,
Case No. 2:08-CV-678
Defendant.
This matter is before the court on Plaintiff Tyler Henderson’s (“Henderson”) Application
for Attorney Fees Under the Equal Access to Justice Act. The court has carefully reviewed the
written memoranda submitted by the parties. Pursuant to local rule 7-1(f), the court has
concluded that oral argument would not be helpful or necessary, and thus the court will
determine the motion on the basis of the written memoranda. See DUCivR 7-1(f). Based on the
memoranda filed by the parties and the law and facts relevant to the petition, the court enters the
following Order.
BACKGROUND
Henderson applied for disability benefits in February 2004, claiming that a back injury
rendered him unable to work. His application was denied initially and on reconsideration by an
administrative law judge (“ALJ”) in 2008. Henderson then appealed to this court, which rejected
his appeal on June 30, 2009, finding that “the Commissioner’s decision was free of legal error
and was supported by substantial evidence.”1 On June 15, 2010, the Tenth Circuit found that
“the ALJ committed reversible error by failing to discuss his reasons for finding that Mr.
Henderson’s back impairment did not meet or equal Listing 1.04 for disorders of the spine.”
DISCUSSION
Plaintiff is seeking attorney fees pursuant to the Equal Access to Justice Act (“EAJA”).
28 U.S.C. § 2412(d)(1)(A).2 Under the EAJA, “a court shall award to a prevailing party . . . fees
and other expenses . . . incurred by that party in any civil action . . . unless the court finds that the
position of the United States was substantially justified or that special circumstances make an
award unjust.”3 Further, “[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).
This court found the decision of the ALJ to be supported by substantial evidence and free
of legal error, and it is therefore tempting to conclude that “the Commissioner’s position was
justified to a degree that could satisfy a reasonable person.” Id. But in light of the Tenth
Circuit’s decision in this case, the court must find that the Commissioner’s position was not
substantially justified. The Tenth Circuit emphasized that it had previously determined, in
1
Docket No. 17.
2
Plaintiff seeks $18,408.20, but the actual total is $15,833.72. See Docket No. 28 at Ex.
1, pages 1-2. The court assumes that Plaintiff inadvertently made a mathematical error in
totaling the various amounts requested.
3
28 U.S.C. § 2412(d)(1)(A).
Clifton v. Charter, 79 F.3d 1007 (10th Cir. 1996), that the ALJ had failed to “discuss the evidence
or his reasons for determining that [the claimant] was not disabled at step three,” and instead
“merely stated a summary conclusion that [the claimant’s] impairments did not meet or equal any
Listed Impairment.” Id. at 1009. The court noted that such a conclusory statement was
insufficient to satisfy the ALJ’s duty under Clifton. It further stated that “[o]ur decision was
predicated on the fact that the ALJ’s decision was a “bare conclusion . . . beyond meaningful
judicial review.” Id. In its decision, the Tenth Circuit also distinguished Fischer-Ross v.
Barnhart, 431 F.3d 729 (10th Cir. 2005), in which the court explained that
a court could still affirm an ALJ’s decision — despite the ALJ’s failure to make
specific step three findings — when “confirmed or unchallenged findings made
elsewhere in the ALJ’s decision [i.e., at steps four and five]” “conclusively
preclude Claimant’s qualification under the listings at step three” such that “[n]o
reasonable factfinder could conclude otherwise.”
Id. at 734-35. But in the instant case, the Tenth Circuit found that
this is not a case like Fischer-Ross where the ALJ’s findings at steps four and five
conclusively negate Mr. Henderson’s claim under Listing 1.04. The ALJ’s
discussion of the medical evidence pertaining to Mr. Henderson’s back
impairment is at best equivocal in terms of showing whether he meets or equals
any of the subsections of Listing 1.04.
Id. In addition, the court rejected the Commissioner’s argument that Mr. Henderson’s spinal
arachnoiditis was “resolved” by his second back surgery, and, even if it was not, Mr.
Henderson’s condition did not result in severe “burning” or “painful dysesthesia,” as required by
Listing 1.04(B), because the ALJ “made no findings on those issues, and on the record before us,
we are not persuaded that the medical evidence conclusively establishes either assertion.”
Accordingly, the court finds that Plaintiff is entitled to attorney fees and expenses under
the EAJA. The court awards the amount requested by Plaintiff for the district court litigation
($2,948.13), the appellate court litigation ($9,052.20), and $120 for the documents and
arguments to obtain the original EAJA fee, but it finds the amount requested for filing the
amended application for attorney fees, time sheet, Bill of Costs, etc. to be excessive ($3,713.39)
because it greatly exceeds the amount requested for the entire district court litigation. The court
will award $2,000 relating to the motion for EAJA fees and expenses and will also award the
amount requested in the Bill of Costs ($607.94). In total, the court awards $14,608.27 to
Plaintiff.
Finally, while it appears that Plaintiff has assigned his right to EAJA fees to his counsel,
it is the Commissioner who determines whether to waive the requirements of the AntiAssignment Act. The Commissioner may decide to so waive the requirement only after a court
actually awards fees and only if the Commissioner determines that the plaintiff does not owe a
debt that is subject to offset under the Treasury Offset Program. See 31 U.S.C. § 3716(c)(3)(B)
(2006). Accordingly, the payment shall be made payable to Plaintiff and delivered to Plaintiff’s
counsel. See Astrue v. Ratliff, 130 S. Ct 2521 (2010).
CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that Mr. Hendersen’s Motion for
EAJA Attorney Fees [Docket Nos. 26, 32] is GRANTED in the amount of $14,608.27. The
EAJA fees shall be made payable to Plaintiff.
DATED this 27th day of February, 2013.
DALE A. KIMBALL
United States District Judge
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