United States District Court, D. New Mexico
ORDER AWARDING ATTORNEY FEES UNDER EAJA
MATTER is before the Court on Plaintiff's Motion for
Attorney Fees Pursuant to the Equal Access to Justice Act
(EAJA), with Memorandum in Support (Doc. 27), filed
on December 27, 2016. Defendant opposes an award of EAJA fees
and argues that the Acting Commissioner's position was
substantially justified on appeal. Doc. 28. Having
reviewed the motion and exhibit, briefs submitted by the
parties, and relevant law, the Court finds an award of fees
in the amount requested is reasonable in this case.
initiated this case seeking remand of the Commissioner's
denial of his application for social security benefits
arguing, among other things, that the ALJ committed
reversible error by failing to follow the “treating
physician rule” with respect to the opinion of James
William Melisi, M.D., Plaintiff's treating neurosurgeon.
Doc. 19 at 15. This Court agreed, finding
“that this matter should be remanded for reevaluation
of the weight to be assigned to the opinion of” Dr.
Melisi. Doc. 25 at 10. This Court's conclusion
was premised primarily on the fact that the ALJ's
decision to accord Dr. Melisi's opinions “limited
weight” failed to demonstrate that she considered the
regulatory factors stated in 20 C.F.R. §§ 404.1529
and 416.927. Id. at 7-8.
now seeks attorney fees under EAJA. “Under EAJA, a fee
award is required if: (1) plaintiff is a ‘prevailing
party'; (2) the position of the United States was not
‘substantially justified'; and (3) there are no
special circumstances that make an award of fees
unjust.” Hackett v. Barnhart, 475 F.3d 1166,
1172 (10th Cir. 2007) (quoting 28 U.S.C. §
241(d)(1)(A)). The parties here disagree on the second
factor: whether the position of the Acting Commissioner was
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) (citing
Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir.
1992)). The Commissioner bears the burden to establish that
her position was substantially justified, both at the appeal
and at the underlying administrative proceedings.
Hackett, 475 F.3d at 1172; see also Tomlinson v.
Colvin, CIV-15-699-STE, 2016 WL 5316740, at *1 (W.D.
Okla. Sept. 22, 2016). “Therefore, fees should
generally be awarded where the agency's underlying action
was unreasonable even if the government advanced a reasonable
litigation position.” Tomlinson, 2016 WL
5316740, at *1 (quoting Hackett, 475 F.3d at 1174
(internal quotation omitted)). The Court finds that the
government has not met its burden to show that its position
was substantially justified at the underlying administrative
Acting Commissioner contends that the government's
defense of the ALJ's decision was not unreasonable
“in light of the specific factual and legal
circumstances existing in this case.” Doc. 28
at 3. In support of this position the Acting Commissioner
offers three arguments.
the Commissioner argues that the Tenth Circuit “has
described articulation standards in the context of a Social
Security case as flexible.” Id. at 3 (citing
Keyes-Zachary v. Astrue, 695 F.3d 1156, 1166 (10th
Cir. 2012)). While this may be true, the Tenth Circuit has
also made clear that the record must reflect that the ALJ
considered every relevant regulatory factor in assigning
weight to a physician's opinion. See Andersen v.
Astrue, 319 F. App'x 712, 718 (10th Cir. 2009)
(unpublished) (“Although the ALJ's decision need
not include an explicit discussion of each factor .
. . the record must reflect that the ALJ considered
every factor in the weight calculation.”) (emphasis in
original); see also Oceguera v. Colvin, 658
F.App'x 370, 374 (10th Cir. 2016) (unpublished)
(“the ALJ must consider all six factors”)
(citation omitted). Those factors are:
(1) the length of the treatment relationship and the
frequency of examination; (2) the nature and extent of the
treatment relationship, including the treatment provided and
the kind of examination or testing performed; (3) the degree
to which the physician's opinion is supported by relevant
evidence; (4) consistency between the opinion and the record
as a whole; (5) whether or not the physician is a specialist
in the area upon which an opinion is rendered; and (6) other
factors brought to the ALJ's attention which tend to
support or contradict the opinion.
See 20 C.F.R. §§ 404.1527, 416.927. Here,
the Court found that the ALJ failed to address any of the
regulatory factors aside from supportability, Doc.
25 at 8, and the Tenth Circuit has reversed under a
similar set of facts. See Andersen, 319 F. App'x
cases from the Seventh Circuit, the Commissioner argues that
“some courts have concluded that deficiencies in
articulation alone generally do not warrant an award of
attorney's fees.” Doc. 28 at 3 (citing
Cunningham v. Barnhart, 440 F.3d 862, 865 (7th Cir.
2006); Stein v. Sullivan, 966 F.2d 317, 319-20 (7th
Cir. 1992)). Even if these cases were binding upon this
Court, they are distinguishable. Cunningham affirmed
the denial of EAJA fees where “the ALJ failed to
connect all the dots in his [credibility] analysis.”
Cunningham, 440 F.3d at 865. The issue here is the
treating physician rule, not credibility, and the Seventh
Circuit gave no indication that its rationale would extend to
the treating physician rule. The same is true of
Stein, where the ALJ's error was merely failing
to articulate that all of the evidence in the case was
considered in denying benefits. Stein, 966 F.2d at
Commissioner also argues that “to the extent that Dr.
Melisi offered actual medical source opinions about
Plaintiff's functional capabilities rather than a mere
conclusory statement of disability, Dr. Melisi's opinions
were entirely consistent with the ALJ's RFC
finding.” Doc. 28 at 5. In other words, the
Commission argues that the ALJ's errors were harmless.
Id. at 6 (citing Keyes-Zachary, 695 F.3d at
1161, 1165). However, this assertion ignores Dr. Melisi's
opinion that Plaintiff is totally incapacitated. AR
at 417. While the disability determination is an issue that
is reserved to the Commissioner, the ALJ “was still
required to provide an evaluation of the opinion and
explain [her] reasons for either rejecting or accepting
[it].” See Mayberry v. Astrue, 461 F.App'x
705, 708 (10th Cir. 2012) (unpublished). The ALJ failed to do
so in this case, and her error was not harmless.
did not sufficiently explain why she assigned Dr.
Melisi's opinion “limited weight, ” and this
Court cannot simply presume the ALJ applied the correct legal
standards in considering the opinion in the absence of
express analysis. See Robinson v. Barnhart,
366 F.3d 1078, 1083 (10th Cir. 2004). Therefore, because the
ALJ failed to apply the correct legal standards in assessing
Dr. Melisi's opinion, the Court finds that the Acting
Commissioner's position was not substantially justified
and that an award of EAJA fees is reasonable.
THEREFORE ORDERED that attorney fees be, and hereby are,
awarded under the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d), payable to Plaintiff in the amount of $5,
231.00. See Astrue v. Ratliff, 13 U.S. 2521 (2010)
(EAJA fees are paid to the prevailing party, not the
FURTHER ORDERED that, if Plaintiffs counsel receives attorney
fees under both the EAJA and 42 U.S.C. § 406(b) of the
Social Security Act, Plaintiffs counsel shall refund the
smaller award to Plaintiff ...