United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA, Judge
MATTER is before the Court upon Plaintiff's Motion
for Attorney Fees Pursuant to the Equal Access to Justice
Act, with Memorandum in Support (the
“Motion”), (Doc. 24), filed January 31, 2017;
Defendant Commissioner Nancy A. Berryhill's
Defendant's Response to Plaintiff's Motion for
Attorney Fees Pursuant to the Equal Access to Justice
Act (the “Response”), (Doc. 25), filed
February 14, 2017; and Plaintiff's Reply in Support
of Motion for Attorney Fees Pursuant to the Equal Access to
Justice Act (the “Reply”), (Doc. 26), filed
February 27, 2017. Having reviewed the Motion, the Response,
the Reply, and relevant law, the Court finds that
Plaintiff's Motion should be GRANTED.
August 7, 2012, Mr. Baca filed an application for
supplemental social security income and disability insurance
benefits alleging disability commencing on August 15, 2001.
(Administrative Record (“AR”) 136-141, 142-148).
His claim for benefits was initially denied and again upon
reconsideration. (AR 83-86, 88-93). A request for a hearing
was filed and a hearing was held on July 23, 2013 before an
Administrative Law Judge (“ALJ”), who issued an
unfavorable decision. (AR 31-56, 94-95). Mr. Baca then filed
an application for review by the Appeals Council, which was
summarily denied. (AR 1-6, 8-10).
Mr. Baca appealed to this Court, arguing that the ALJ
committed reversible legal error by failing to: (1) analyze
whether Mr. Baca's skin condition met or equaled any of
the listings under 8.00 at step three; (2) develop the record
concerning whether Mr. Baca had an infectious skin condition;
and (3) provide adequate reasons for rejecting the medical
opinion of consultative examiner Colleen Ryan, M.D. (Doc. 18
at 2). Because the ALJ failed to analyze whether Mr.
Baca's impairments met or equaled a listing, the Court
remanded the case to the Commissioner for further proceedings
in its Memorandum Opinion and Order (the
“Order”). (Doc. 22).
Baca now moves this Court for attorney's fees pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412(d)
(“EAJA”). (Doc. 24). He argues that an award of
fees is appropriate because he is the prevailing party, his
net worth is less than $2, 000, 000.00, and the
Commissioner's position in defending the action was not
substantially justified. (Doc. 24 at 1).
Commissioner responds that Mr. Baca's request for fees
under EAJA should be denied because the Commissioner's
position in this case was substantially justified. (Doc. 25
at 1). Specifically, the Commissioner argues that Mr. Baca
did not meet his burden of showing that his impairment met a
Listing. (Doc. 25 at 4).
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 only disputes whether
her position was substantially justified.
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).
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).
Commissioner's Position was not Substantially Justified
In this case, the Court remanded the ALJ's decision
because the ALJ failed to analyze whether Mr. Baca's skin
impairments met or equaled the listings for severe
impairments at step three. (Doc. 24 at 9-11). Thus, the issue
here is whether the Commissioner has met her burden to show
that she was substantially justified in failing to analyze
the skin disorder listings at step three. This Court finds
that the Commissioner has not.
Commissioner argues that her position in defending the
ALJ's decision was substantially justified because she
relied on an “arguably defensible administrative
record” in this case. (Doc. 25 at 3) (quoting
Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir.
1991) (internal quotation marks removed)). Further, the
Commissioner makes the same arguments made in the underlying
briefing, maintaining that Mr. Baca did not meet his burden
of showing that his skin condition met or equaled a listing.
(Doc. 25 at 4).
three, the ALJ determines whether the claimant's
impairment or combination of impairments either meet or equal
one of the “listings” of presumptively disabling
impairments. 20 C.F.R. § 416.920(a)(4)(iii). Here, the
ALJ specifically considered whether Mr. Baca's arthritis
and lumbar degenerative disc disease met or equaled the
listings, but did not make the same finding for Mr.
Baca's skin impairment. The Court found, however, that
based on the ...