Pace v. Colvin
MEMORANDUM DECISION and ORDER granting 28 Plaintiff's Motion for Attorney Fees Pursuant to EAJA. Signed by Magistrate Judge Brooke C. Wells on 11/17/2014. (tls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
LINDA CUMMINGS PACE,
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
MEMORANDUM DECISION & ORDER
GRANTING PLAINTIFF’S MOTION FOR
ATTORNEY’S FEES PURSUANT TO
Case No. 2:13-cv-267-BCW
Magistrate Judge Brooke Wells
Before the Court is Plaintiff’s Motion for attorney fees pursuant to the Equal Justice Act
(“EAJA”), 28 U.S.C. §2412(d).1 Plaintiff requests $5,321.82 to be paid by the United States
Government pursuant to the EAJA.
Plaintiff initiated this action in April, 2013 seeking judicial review of the Commissioner’s
decision denying her applications for Disability, Disability Insurance Benefits and Supplemental
Security Income. Plaintiff raised three issues in her appeal: “(1) whether the ALJ erred by
failing to properly evaluate the medical opinion evidence; (2) whether the ALJ erred by failing to
include all established impairments in Ms. Pace’s residual functional capacity assessment and (3)
whether the ALJ erred by failing to properly evaluate Ms. Pace’s credibility.” The Court
remanded the matter for further consideration. The Court found the ALJ erred by improperly
evaluating the medical opinion evidence. Therefore, the Court did not address the other issues
raised by Plaintiff.
Docket no. 30.
Specifically, the Court found the ALJ erred by discounting the opinion of Nurse
Ostarcevic and Dr. Moore. As to Nurse Ostarcevic, the MRI that was ordered by Nurse
Ostarcevic contained more impairments than the ALJ described. Moreover, the Court found
…the ALJ’s very limited analysis of Ms. Ostarcevic’s opinion and simple
statements that ‘…the opinion of a nurse practitioner is considered an ‘other
source’ that cannot establish the existence of a medically determinable
impairment’ does not allow the Court, as a subsequent reviewer to discern the
amount of weight, if any, was given to the opinion. Nor is the Court able to
meaningfully review the ALJ’s reasoning for assigning such weight. 2
As to Dr. Moore, the Court found the ALJ erred by not weighing nor mentioning the opinion of
Dr. Moore in his written opinion. Further, the Court found this omission not to be harmless
error. The RFC the ALJ formulated does not take into account any of the commentary offered
by Dr. Moore at the hearing. Therefore, “by the ALJ not weighing or commenting on Dr.
Moore’s opinion in his written opinion, it is impossible for the Court to meaningfully review the
ALJ’s determination. Dr. Moore’s opinion certainly could have aided in crafting…a more
restrictive RFC and/or assisted a finding of disability.”3
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. The
Commissioner does not contest the amount, or the fact that Plaintiff was the prevailing party.
Rather, the Commissioner argues that its position was substantially justified and therefore an
award of attorney fees is improper.
STANDARD OF REVIEW
The EAJA provides that in civil actions, a party who prevails against the United States is
entitled to an award of attorney’s fees “unless the court finds that the position of the United
Docket no. 26 at p. 12.
Id. at p.13.
States was substantially justified or that special circumstances make an award unjust.”4 The only
dispute in this Motion is whether the Commissioner’s position was substantially justified.
“The test for substantial justification in this circuit is one of reasonableness in law and
fact.”5 Accordingly, the government’s position must be “justified to a degree that could satisfy a
reasonable person.”6 “[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.”7 Of note, is the distinction between the substantial
evidence standard under the Social Security Act, and the substantial justification requirement
under the EAJA.8 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.”9 Moreover, to hold these two standards
synonymous appears improper under the history behind the statute,10 and at odds with the
Supreme Court’s decision in Pierce v. Underwood.11 Thus, “a lack of substantial evidence on the
merits does not necessarily mean that the government’s position was not substantially
28 U.S.C. § 2412(d)(1)(A).
Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)(internal citations omitted).
Pierce v. Underwood, 487 U.S. 552, 565 (1988).
Id.at 552, n. 2.
See Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir. 1988).
See Taylor v. Heckler, 835 F.2d 1037, 1044 (3rd 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.”).
487 U.S. 552.
Hadden, at 1269.
In making its determination with regard to the present motion, the Court has reviewed the
parties’ briefs in relation to both the appeal and the current Motion for Attorney Fees pursuant to
the EAJA. The Court has also reviewed the administrative record, the Court’s Memorandum
Decision and Order and relevant case law. For the reasons set forth more fully below, the Court
finds the position of the Commissioner was not substantially justified. Thus, Plaintiff as the
prevailing party is eligible to receive an attorney fee award in the amount requested. The Cour
further find the amount of attorney fees requested by Plaintiff to be reasonable.
In opposition to Plaintiff’s Motion for Attorney Fees, the Commissioner argues any error
by the ALJ in failing to evaluate the opinion of Dr. Moore was harmless. In the written opinion,
the Court specifically found that the ALJ’s omission in weighing and evaluating Dr. Moore’s
opinion was not harmless error. The obligation to evaluate all the medical opinions is a basic
duty of the ALJ. Therefore, the Court agrees with Plaintiff that the Commissioner is raising the
same arguments that were rejected earlier. Even though the standards for EAJA and
administrative appeals differ, the Court does not find the Commissioner’s arguments to be
persuasive nor substantially justified with regard to Dr. Moore.
As to Nurse Ostarcevic, the ALJ discounted her opinion because “[n]urse practitioners
are not ‘acceptable medical sources…[i]nstead the opinion of a nurse practitioner is considered
an ‘other source’ that ‘cannot establish the existene of a medically determinable impairment.’13
The Court found the ALJ’s failure to provide further commentary as to Nurse Ostarcevic’s
opinion did not allow the Court as a subsequent reviewer to discern the amount of weight, if any,
was given to the opinion. In addition, upon review of the ALJ’s summary of an MRI ordered by
Nurse Ostarcevic, the Court found that it was unable to meaningfully review the ALJ’s findings
Tr. at 41.
because the ALJ’s summary did not fully capture the MRI’s findings and the ALJ’s summary
actually contradicted the MRI results.
The Commissioner argues “in light of the medical
evidence and lack of treatment post-209, the Commissioner’s position that Plaintiff had less
severe limitations than she and Ms. Ostarcevic claimed was reasonable.”14
The Court finds the Commissioner’s arguments to be unpersuasive because the actual
MRI findings undermine the ALJ’s reasons for discounting Ms. Ostarcevic’s opinion. The Court
does not find the Commissioner’s position to be substantially justified because the Court found
error in the ALJ’s evidence supporting his opinion of Ms. Ostarcevic not whether or not his
position could be supported by other means. The Court therefore agrees with Plaintiff that “the
ALJ’s failure to properly address this MRI report and instead use a skewed version of it to
support his rejection of Ms. Ostarcevic’s opinion is not reasonable.”15
CONCLUSION & ORDER
For the foregoing reasons, the Court HEREBY GRANTS Plaintiff’s Motion for Attorney
Fees.16 The Court awards Plaintiff fees under the EAJA in the amount of $5,321.82.17 The award
shall be made payable to the Plaintiff and mailed to Plaintiff’s attorney at the Law Office of Jay
Barnes, 1079 E. Riverside Dr., Ste. 203, St. George, UT 84790.
DATED this 17 November 2014.
Brooke C. Wells
United States Magistrate Judge
Docket no. 29 at p. 5.
Docket no. 30 at p.5.
Docket no. 28.
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)(2006).
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