Lemmon v. Colvin

Filing 36

MEMORANDUM DECISION & ORDER: denying 33 Motion for Attorney Fees. Plaintiffs motion for attorney's fees under the EAJA is DENIED. Signed by Magistrate Judge Paul M. Warner on 04/05/2017. (kpf)

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

ROBERT M. LEMMON,

MEMORANDUM DECISION
AND ORDER

Plaintiff,
v.

Case No. 2:14-cv-554

CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

Chief Magistrate Judge Paul M. Warner

All parties consented to having Chief United States Magistrate Judge Paul M. Warner
conduct all proceedings in the case, 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 Robert M. Lemmon’s (“Plaintiff”) motion for attorney fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). 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(s) on the basis of the written
memoranda. See DUCivR 7-1(f).
Plaintiff is seeking attorney’s fees pursuant to the EAJA. 28 U.S.C. § 2412(d)(1)(A).
Under the EAJA, “a court shall award to a prevailing party . . . fees and other expenses . . .

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Dkt. no. 10.

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.” Id.
The United States Supreme Court has defined “substantially justified” to mean that the position
taken by the government was “justified to a degree that could satisfy a reasonable person.”
Pierce v. Underwood, 487 U.S. 552, 565 (1988). “The test for substantial justification in this
circuit is one of reasonableness in law and fact.” Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th
Cir. 1995). The government’s “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.” Pierce, 487 U.S. at 566 n.2.
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). “The government’s success or failure on the merits at each level may be evidence of
whether its position was substantially justified, but that success or failure alone is not
determinative of the issue.” Id. at 1267. For the purposes of the EAJA, “a lack of substantial
evidence on the merits does not necessarily mean that the government’s position was not
substantially justified.” Id. at 1269.
In the instant case, this court remanded the case because the ALJ erroneously relied upon
two positions that conflicted with Plaintiff’s Residual Functional Capacity (“RFC”) in
determining that there were a significant number of jobs in the national economy that Plaintiff
could perform. Thus, for the only position that was consistent with Plaintiff’s RFC (final
assembler), the ALJ never had the occasion to determine whether 10,000 positions (as

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determined by the vocational expert) and/or 13,000 positions (as determined by the ALJ)
constituted a significant number of jobs in the national economy. While the government
conceded that it was error for the ALJ to include the two positions that conflicted with Plaintiff’s
RFC, it argued that the error was harmless because the final assembler position existed in
significant numbers in the national economy.
The Tenth Circuit has refused to draw a “bright line establishing the number of jobs
necessary to constitute a significant number” in the national economy. Trimiar v. Sullivan, 966
F.2d 1326, 1330 (10th Cir. 1992). While the Tenth Circuit has previously held that the harmless
error doctrine may be proper in certain circumstances, it necessitates “the right exceptional
circumstance, i.e., where based on material the ALJ did at least consider (just not properly), [the
court] could confidently say that no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.” Allen v. Barnhart, 357 F.3d
1140, 1145 (10th Cir. 2004).
In an unpublished case that is very similar to the instant case, the Tenth Circuit upheld the
district court’s denial of the plaintiff’s application for attorney fees where the district court found
(and the government conceded) that it was error for the ALJ to include one of the positions as it
was inconsistent with the plaintiff’s RFC. Evans v. Colvin, 640 F. App’x 731, 736 (10th Cir.
2016) (unpublished). The district court was not persuaded by the government’s harmless error
argument and remanded the case to the ALJ to determine whether the other two jobs existed in
significant numbers in the national economy. Id. at 734. The Tenth Circuit concluded that, while
ultimately unsuccessful, it was not unreasonable for the government to argue that 18,831 jobs in
the national economy was a significant number and that the court should apply the harmless error
doctrine. Id. at 736-37. As noted by the Tenth Circuit, the district court reasoned that the

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conflicting authority regarding this issue “could reasonably be viewed as supporting a decision
either way,” and stated “that it would not be surprised if the ALJ found that the remaining
national jobs existed in significant numbers” because “the issue had been a very close call.” Id.
at 735. The Tenth Circuit concluded that because its precedent suggested that the number of
nationwide jobs considered to be significant in the harmless error context could be anywhere
between 100 and 152,000, the government was substantially justified in arguing harmless error
for 18,831 remaining positions. Id. at 736-37. Thus, the Tenth Circuit affirmed the district
court’s denial of the plaintiff’s application for attorney fees under the EAJA. Id.
Similarly, this court concludes that it was not unreasonable for the government to argue
that the ALJ’s error was harmless. Like the district court in Evans, this court would not be
surprised if the ALJ found that the number of positions remaining that Plaintiff could perform
exists in significant numbers in the national economy. However, based on this court’s
understanding of the applicable precedent, the ALJ should be the first judge to consider this
issue. Accordingly, the government was substantially justified in arguing that 10,000 (or 13,000)
final assembler positions in the national economy constituted a significant number.
Based on the foregoing, Plaintiff’s motion for attorney’s fees under the EAJA is
DENIED.
IT IS SO ORDERED.
DATED this 5th day of April, 2017.
BY THE COURT:

PAUL M. WARNER
Chief United States Magistrate Judge

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