Thomas v. Colvin

Filing 25

MEMORANDUM DECISION granting 22 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
CENTRAL DIVISION
DALENE THOMAS,
Plaintiff,
v.

MEMORANDUM DECISION
AND ORDER
Case No. 2:13-cv-296-PMW

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
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. 1 See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73. Before the
court is Dalene Thomas’s (“Plaintiff”) motion for attorney fees pursuant to the Equal Access to
Justice Act (“EAJA”). 2 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
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).

1

See docket no. 15.

2

See docket no. 22.

BACKGROUND
On December 17, 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 January 1, 2008. 3 Plaintiff’s applications were denied initially and upon
reconsideration. 4 On September 28, 2010, Plaintiff requested a hearing before an Administrative
Law Judge (“ALJ”), 5 and that hearing was held on March 10, 2011. 6 On March 25, 2011, the
ALJ issued a written decision denying Plaintiff’s claims for DIB and SSI. 7 On December 8,
2011, the Appeals Council denied Plaintiff’s request for review, 8 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.
On January 20, 2012, Plaintiff filed suit in this court to appeal the Commissioner’s final
decision determining that Plaintiff was not entitled to DIB and SSI. 9 On May 24, 2012, the

3

See docket nos. 10-11, Administrative Record (“Tr.

4

See Tr. 83-86.

5

See Tr. 104-105.

6

See Tr. 36-82.

7

See Tr. 18-35.

8

See Tr. 1-6.

9

See Case no. 2:12-cv-92-BCW, docket no. 3.
2

”) 149-162.

Commissioner filed an unopposed motion to remand Plaintiff’s case for further administrative
proceedings. 10 The court granted that motion. 11
In an order dated June 26, 2012, the Appeals Council remanded Plaintiff’s case to the
ALJ. 12 A remand hearing was then held on March 14, 2013. 13 On March 27, 2013, the ALJ
issued a second written decision denying Plaintiff’s claims for DIB and SSI. 14 The ALJ’s second
decision became the Commissioner’s final decision for purposes of judicial review when
Plaintiff did not file exceptions with the Appeals Council, and when the Appeals Council did not
assume jurisdiction over Plaintiff’s case on its own. See 20 C.F.R. §§ 404.984(d), 416.1484(d).
On May 1, 2013, Plaintiff filed her complaint in this case seeking judicial review of the
Commissioner’s final decision. 15 On June 18, 2014, this court issued a memorandum decision
and order (“Order”) reversing the Commissioner’s final decision and remanding this case for
further administrative proceedings. 16 Although Plaintiff raised numerous challenges to the ALJ’s
decision on appeal, the court addressed only two issues in the Order because they were
dispositive of Plaintiff’s appeal. First, the court concluded that the ALJ erred by failing to
provide any analysis concerning the weight he assigned to the opinions of Tim Kockler, Ph.D.
10

See id. at docket no. 17; Tr. 576-578.

11

See Case no. 2:12-cv-92-BCW at docket no. 18; Tr. 574-575.

12

See Tr. 581-586.

13

See Tr. 492-530.

14

See Tr. 437-471.

15

See docket no. 3.

16

See docket no. 20.
3

(“Dr. Kockler”), 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). Second, the court concluded that the ALJ erred by failing to consider a lay witness
statement submitted by Plaintiff’s father. The judgment in this case was entered on June 19,
2014. 17
On August 20, 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 her
counsel both signed. In that agreement, Plaintiff assigned her right to any EAJA attorney fees to
her 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
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
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

17

See docket no. 21.
4

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.
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 her motion, which was filed within the requisite thirty-day period referenced above,
Plaintiff argues that she is entitled to an award of $5811.99 for attorney fees pursuant to the
EAJA and has included the required itemized statement of fees. Plaintiff asserts that she 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.

5

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. Kockler 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 further argues that, even if Dr. Kockler’s opinions
did relate to Plaintiff’s functional limitations, the ALJ’s decision and the Commissioner’s
position on appeal were reasonable because Dr. Kockler’s opinions are not inconsistent with the
ALJ’s decision, which renders harmless any error committed by the ALJ in failing to weigh Dr.
Kockler’s opinions. As for consideration of the lay witness statement of Plaintiff’s father, the
Commissioner asserts that the ALJ’s failure to discuss said statement was harmless because it
essentially reiterated Plaintiff’s testimony, which the ALJ found to be not credible. The
Commissioner notes that Plaintiff did not challenge the ALJ’s credibility determination on
appeal. Finally, the Commissioner argues that if attorney fees are to be awarded in this case,
they should be awarded directly to Plaintiff, not to Plaintiff’s counsel.
The court has determined that the Commissioner’s arguments concerning substantial
justification are 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.
With respect to Dr. Kockler’s opinions, the Commissioner has failed to persuade the court
that Dr. Kockler did not offer an opinion about Plaintiff’s functional limitations. To the contrary,
6

at least one of Dr. Kockler’s statements can be construed as going directly to Plaintiff’s
functional limitations. 18 Further, Dr. Kockler’s opinions were rendered after a thorough
psychological evaluation of Plaintiff. In the court’s view, those opinions were required to
weighed by the ALJ as a medical opinion 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. As for the
Commissioner’s harmless error argument, the court concludes that it is speculative in nature and
an improper post-hoc attempt to justify the ALJ’s decision. See, e.g., Haga v. Astrue, 482 F.3d
1205, 1207-08 (10th Cir. 2007); Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005).
Under the relevant regulations, the ALJ had a clear duty to weigh all of the opinion evidence. He
failed to do so in this case. For those reasons, the court concludes that the Commissioner’s
position with respect to Dr. Kockler’s opinions was not substantially justified, either at the
agency level or on appeal.
As for the Commissioner’s argument concerning the ALJ’s failure to make any reference
to Plaintiff’s father’s lay witness statement, the court concludes that it fails. The Commissioner
argues that the ALJ’s failure in that regard was harmless because the lay witness statement
essentially reiterates Plaintiff’s testimony, which the ALJ found to be not credible. However, the
court rejected that argument in the Order and rejects it again here. As the court noted in the
Order, Plaintiff’s father’s lay witness statement provides information about Plaintiff’s functional
limitations that is not contained in Plaintiff’s testimony. Accordingly, the court cannot conclude
that the ALJ’s failure to make any reference to Plaintiff’s father’s lay witness statement
constituted harmless error. By failing to make any reference to the lay witness statement, the
18

See Tr. 775.
7

ALJ failed to make it clear that he considered the statement in reaching his decision. See Blea v.
Barnhart, 466 F.3d 903, 915 (10th Cir. 2006). For those reasons, the court concludes that the
Commissioner’s positions at the agency level and on appeal with respect to Plaintiff’s father’s
lay witness statement were 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). Notably, in her
reply memorandum, Plaintiff does not object to payment of attorney fees under the EAJA
directly to her, rather than to her counsel.
Finally, although not challenged by the Commissioner, the court concludes that the
attorney fees sought by Plaintiff are reasonable.

8

CONCLUSION AND ORDER
Based on the foregoing, Plaintiff’s motion for attorney fees pursuant to the EAJA 19 is
GRANTED. The Commissioner shall pay Plaintiff an award of attorney fees under the EAJA
attorney fee award of $5811.99, but that award shall be payable directly to Plaintiff, not to her
counsel.
IT IS SO ORDERED.
DATED this 3rd day of November, 2014.
BY THE COURT:

PAUL M. WARNER
United States Magistrate Judge

19

See docket no. 22.
9