United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
MATTER is before the Court upon Plaintiff Shawn Rene
Grantham's Motion for Attorney Fees Pursuant to the
Equal Access to Justice Act, with Memorandum in Support
(the “Motion”), (Doc. 25), filed February 21,
2017; Defendant Commissioner Nancy A. Berryhill's
Defendant's Response to Plaintiff's Motion for an
Award of Attorney's Fees Pursuant to the Equal Access to
Justice Act (the “Response”), (Doc. 26),
filed March 7, 2017; and Plaintiff's Reply in Support
of Motion for Attorney Fees Pursuant to the Equal Access to
Justice Act (the “Reply”), (Doc. 29), filed
March 31, 2017. Having reviewed the Motion, the Response, the
Reply, and relevant law, the Court finds that Plaintiff's
Motion should be GRANTED.
December 1, 2010, Mr. Grantham filed applications for
disability insurance and supplemental security income
benefits, alleging disability commencing on February 1, 2009.
(Administrative Record (“AR”) 86-88). His claim
for benefits was initially denied and again upon
reconsideration. (AR 109-112, 113-116, 124-126, 127-130). A
request for a hearing was filed, (AR 131-132), and a hearing
was held on April 15, 2014 before Administrative Law Judge
(“ALJ”) Barry O'Melinn. (AR 34-85). The ALJ
issued an unfavorable decision, (AR 17-33), and Mr. Grantham
filed an application for review by the Appeals Council, which
was denied. (AR 1-6).
Mr. Grantham appealed to this Court, arguing that the ALJ
committed reversible, legal error by (1) failing to perform a
function-by-function analysis of his work-related abilities;
(2) rejecting Mr. Grantham's Outpatient Discharge
Instructions; (3) failing to give adequate reasons for
discounting an examining physician's opinion; and (4)
formulating a credibility determination that is contrary to
the substantial evidence in the record. (Doc. 16). Because
the ALJ did not perform an appropriate function-by-function
analysis, 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. 23).
Grantham now moves this Court for attorney's fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412(d) (“EAJA”). (Doc. 25). 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. 25 at 1).
Commissioner responds that Mr. Grantham's request for
fees under EAJA should be denied because her position in this
case was substantially justified. (Doc. 26 at 1).
Specifically, the Commissioner maintains that it was
reasonable for the ALJ to incorporate the definition of light
work into his residual functional capacity
(“RFC”) analysis, and it was reasonable for the
Commissioner to argue that the ALJ incorporated standing and
walking requirements in the RFC. (Doc. 26 at 4).
Additionally, the Commissioner contends that the vocational
expert (“VE”) clearly understood Mr.
Grantham's limitations and incorporated them into her
findings. (Doc. 26 at 5).
Standard of Review
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
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 Human 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).
The Commissioner's Position was not Substantially
issue here is whether the Commissioner met her burden to show
that she was substantially justified in failing to perform a
function-by-function analysis. Hartter v. Apfel, No.
99-3095, 202 F.3d 282, *2 (10th Cir. Jan. 11, ...