Henry v. Astrue

Filing 37

MEMORANDUM DECISION granting 34 Motion for Attorney Fees. Signed by Magistrate Judge Dustin B. Pead on 07/03/2013. (asp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION

BECKY HENRY,
Plaintiff,

MEMORANDUM DECISION &
ORDER

v.
Case No. 2:12-cv-000047
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

Magistrate Judge Dustin Pead

Defendant.

All parties in this case have consented to having United States Magistrate Judge Dustin
B. Pead conduct all proceedings in this case, including entry of final judgment, with appeal to the
United State Court of Appeals for the Tenth Circuit. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73
(Dkt. No. 21).
Currently before the Court is Becky Henry’s (Plaintiff) petition for an award of attorney
fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA) (Dkt. No. 34).
Plaintiff seeks an award of fees for 38.50 hours of billing at $185.781 per hour for a total award
of $6,739.74 (Dkt. No. 34-3). Defendant Carolyn Colvin, acting Commissioner of Social

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In her affidavit in support, Plaintiff’s attorney, Justin Pitts, asserts that pursuant to
28 U.S.C. § 241(d)(2)(A), an appropriate hourly rate to be used in calculating the attorney’s fee is
$125.00, increased by appropriate cost of living found in the most recent Consumer Price Index,
dated October 16, 2012. The calculation is as follows: (231.407/155.7) x $125.00=$185.78 (Dkt.
No. 34-2).

Security2 (the Commissioner) objects and asks the Court to deny Plaintiff’s petition on the
ground that the Commissioner’s position was substantially justified (Dkt. No. 35).
BACKGROUND
In May 2005, Plaintiff applied for Disability Insurance Benefits under Title II of the
Social Security Act, see 42 U.S.C. § § 401-434, and Supplemental Security Income under Title
XVI of the Social Security Act, see id. § § 1381-1383f, alleging a disability onset date of April 1,
2005. Plaintiff’s applications were denied initially and upon reconsideration. On December 3,
2008, an administrative law judge (ALJ) issued a written decision denying Plaintiff’s claims. On
March 13, 2010, the Appeals Council denied Plaintiff’s request for review.
Plaintiff took an appeal of the Commissioner’s Decision to the Federal District Court of
Utah. The District Court concluded that the decision of the ALJ was deficient, and on February
8, 2011, issued an order remanding the case for further consideration. Thereafter, the matter
came for re-hearing before the ALJ on August 12, 2011. On September 20, 2011, the ALJ issued
another decision denying Plaintiff’s claims. The September 2011 decision of the ALJ stands as
the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. § § 405(g),
1383 (c)(3); 20 C.F.R. § § 404.981, 416.1481.
Plaintiff filed this case on January 18, 2012, seeking judicial review of the
Commissioner’s final decision (Dkt. No. 3). On March 5, 2013, this Court issued a
Memorandum Decision and Order (Order) reversing the Commissioner’s decision and remanding
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On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social
Security. At the inception of this case, Michael J. Astrue was the acting Commissioner of Social
Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure and the last sentence of
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), Carolyn W. Colvin has been
substituted for Michael J. Astrue as the defendant in this suit.
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the case for further administrative proceedings based on the ALJ’s failure to evaluate the opinion
of Dr. Aaron Shulimson as a treating physician (Dkt. No. 32).
Plaintiff filed her currently pending petition for attorney fees on June 6, 2013 (Dkt. No.
34).
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
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). The EAJA further 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.
Id. § 2412(d)(1)(B).
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[T]he Commissioner ha[s] the burden of proof to show that [her]
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).
Plaintiff argues that she is entitled to an award of $6,739.74 for attorney fees pursuant to
the EAJA and has included the required itemized statement of fees (Dkt. No. 34-3). Plaintiff
asserts that as the prevailing party she is entitled to attorney fees and that the Commissioner’s
position was not substantially justified (Dkt. No. 34).3 In response, the Commissioner objects to
Plaintiff’s request and argues that its position was substantially justified since reasonable people
can disagree as to whether the ALJ’s decision was appropriate (Dkt. No. 35). Moreover,
although the Commissioner admits that the Court found error in the ALJ’s failure to evaluate Dr.
Shulimson as a treating source, the Commissioner points out that the mere fact of error does not
show that it was unjustified in defending the case. Id.
Upon consideration, the Court finds the Commissioner’s argument to be 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 disagrees that such principle applies here. In this case,
remand was based upon the ALJ’s failure to qualify Dr. Shulimson’s opinion as that of a treating
source pursuant to 20 C.F.R. § 416.913(a). Moreover, at the hearing, the Commissioner openly

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In the social security context, the substantial justification standard under the EAJA is not
the same as the substantial evidence standard under the Social Security Act, 42 U.S.C. § 405(g).
This “would result in an automatic award of attorney’s fees in all social security cases in which
the government was unsuccessful on the merits.” Hadden v. Bowen, 851 F.2d 1266, 1269 (10th
Cir. 1988).
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admitted that the ALJ should have evaluated Dr. Shulimson’s opinion as that of a treating source
rather than that of an examining or reviewing source. The Court concluded that the ALJ’s
failure, as admitted to by the Commissioner, constituted error. Further, because the Court
determined that a re-weighing of Dr. Shulimson’s medical opinion could influence Plaintiff’s
Residual Functional Capacity (RFC) assessment, the Court found that said error was not
harmless. Given these fundamental errors along with the Commissioner’s admission that an
error occurred, the Court can not conclude that the Commissioner’s position was substantially
justified.
The parties’ agree that an EAJA award is payable to the litigant, not his or her attorney,
and may be offset for satisfaction of any pre-existing debt owed to the United States. See Astrue
v. Ratliff, 130 S.Ct. 2521, 2528-29 (2010); 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 declines
to award the fees directly to counsel.”); 31 U.S.C. § 3716(c)(3)(B) (2006) (EAJA fees belong to
the Plaintiff and are subject to offset under the Treasury Offset Program). Accordingly, the
EAJA award in this case shall be made directly payable to Plaintiff and not to counsel.
Finally, although not challenged by the Commissioner, the Court concludes that the
attorney fees sought by Plaintiff are reasonable.
Having considered Plaintiff’s petition, for the reasons stated herein, the Court now finds
that Plaintiff’s motion for attorney fees pursuant to the EAJA is hereby GRANTED (Dkt. No.
34). The Commissioner shall pay Plaintiff an EAJA attorney fee award of $6,739.74 that shall
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be made directly payable to Plaintiff and not her counsel.
IT IS ORDERED.
DATED this 3rd day of July, 2013.
BY THE COURT:

____________________________________
Dustin Pead
U.S. Federal Magistrate Judge

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