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Benvenuti v. Berryhill

United States District Court, D. New Mexico

March 27, 2017

JAMES ANTHONY BENVENUTI, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court upon Plaintiff James Anthony Benvenuti's Motion for Attorney Fees and Costs Pursuant to the Equal Access to Justice Act (the “Motion”), (Doc. 26), filed January 23, 2017; Defendant Commissioner Nancy A. Berryhill's Defendant's Response in Objection to Plaintiff's Motion and Memorandum Brief for Attorney Fees Pursuant to the Equal Access to Justice Act (the “Response”), (Doc. 27), filed January 31, 2017; and Plaintiff's Reply in Support of Motion for Attorney Fees and Costs Pursuant to the Equal Access to Justice Act (the “Reply”), (Doc. 28), filed February 17, 2017. Having reviewed the Motion, the Response, the Reply, and relevant law, the Court finds that Plaintiff's Motion should be GRANTED.

         I. Background

         On July 30, 2011, Mr. Benvenuti filed an application for disability benefits with the Social Security Administration, alleging disability commencing on July 7, 2006. (Administrative Record (“AR”) 130, 134-142). His claim for benefits was initially denied and again upon reconsideration. (AR 69-72, 76-78). A request for a hearing was filed, and a hearing was held on April 1, 2014 before an Administrative Law Judge (“ALJ”), who issued an unfavorable decision. (AR 30-57, 79-80). Mr. Benvenuti then filed an application for review by the Appeals Council, which was summarily denied. (AR 1-4, 13).

         Thereafter, Mr. Benvenuti appealed to this Court, arguing that the ALJ committed reversible, legal error by failing to: (1) apply the correct legal standards at step two; (2) address evidence demonstrating that Mr. Benvenuti's physical and mental impairments are severe; and (3) develop the administrative record. (Doc. 16 at 2). Because the ALJ did not evaluate the entire medical record before making findings at step two, the Court remanded the case to the Commissioner of the Social Security Administration (the “Commissioner”) for further proceedings in its Memorandum Opinion and Order (the “Order”). (Doc. 24).

         Mr. Benvenuti now moves this Court for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”). (Doc. 26). He argues that an award of fees is appropriate because he is the prevailing party, his net worth is less than $2, 000, 000, and the Commissioner's position in defending the action was not substantially justified. (Doc. 26 at 1).

         The Commissioner responds that Mr. Benvenuti's request for fees under EAJA should be denied based on the special circumstances that the Court's remand was on an issue that was not argued or briefed by Plaintiff and therefore not defended by the Commissioner. (Doc. 27 at 1). Further, the Commissioner argues that the Commissioner's position in this case was substantially justified. (Doc. 27 at 1).

         II. Analysis

         A. Standard of Review

         Pursuant to EAJA, a court is required to award attorney's fees 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) (citing 28 U.S.C. § 2412(d)(1)(A)). Here, the Commissioner disputes whether her position was substantially justified and argues that there are special circumstances.

         “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Hackett, 475 F.3d at 1172 (citing Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). In order to be substantially justified, the government's position must be “justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.” Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “The term position includes the government's position both in the underlying agency action and during any subsequent litigation.” Hadden, 851 F.2d at 1267 (internal citations omitted).

         “When an area of law is ‘unclear or in flux, it is more likely that the government's position will be substantially justified.'” Cherry v. Barnhart, No. 04-5059, 125 Fed.Appx. 913, 916 (10th Cir. Jan. 24, 2005) (unpublished) (citing Martinez v. Sec'y of Health and Hum. Servs., 815 F.2d 1381, 1382 (10th Cir. 1987)). Indeed, “the government's position can be justified even though it is not correct.” Hackett, 475 F.3d at 1172 (citing Pierce, 487 U.S. at 566 n.2). “The government bears the burden of showing that its position was substantially justified.” Gilbert, 45 F.3d at 1394 (internal citations omitted).

         An EAJA award may also be denied or reduced if “special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Neither “special circumstances” nor “unjust” are defined by the statute. However, the Eighth Circuit notes that “equitable considerations should inform a court's decision in this area.” Walker v. Berryhill, No. CIV-15-1353-R, 2017 WL 782921, at *1 (W.D. Okla. Feb. 28, 2017) (unpublished) (citing United States Dept. of Labor v. Rapid Robert's Inc., 130 F.3d 345, 347 (8th Cir. 1997)). Additionally, the Second Circuit has found that awards should be reduced based on a plaintiff's reduced contribution in the ultimate decision. Id. (citing Firstland Int'l, Inc. v. INS, No. 06-1704-ag, 264 Fed.Appx. 22, 25 (2d. Cir. Jan. 25, 2008) (unpublished) (“Plaintiffs' only contribution to their ultimate victory in the underlying case was the supplemental brief they submitted at this Court's request. We conclude that an award of fees for any amount greater than the cost of preparing that supplemental brief would be unjust.”)).

         The Court will first address the Commissioner's argument that because the Court remanded the case on an argument the Commissioner did not respond to, there are special circumstances that would make an award of EAJA fees unjust. Then, the ...


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