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Ruhe v. Berryhill

United States District Court, D. New Mexico

May 17, 2017

JEFFREY RUHE, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR, United States Magistrate Judge

         THIS MATTER is before the Court on Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, with Memorandum in Support [Doc. 29] (“Motion”), filed on November 3, 2016. Briefing is complete. [Docs. 31, 32]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 10]. Plaintiff moves the Court for an award of $5, 799.80 in attorney fees. [Doc. 29] at 1. Having reviewed the record, the briefing, and the relevant law, the Court finds that the Motion is well-taken and should be granted. However, the award should be reduced to $5, 787.08.

         Background

         Plaintiff applied for a period of disability, disability insurance benefits, and supplemental security income. See Tr. 17. An Administrative Law Judge (“ALJ”) denied Plaintiff's application on January 9, 2014. Tr. 26. After the ALJ had already issued her unfavorable decision, Plaintiff submitted opinions by treating[2] psychiatrist Dr. Gomez and psychologist Dr. Gray to the Appeals Council and requested review. Tr. 1-2, 4; see Tr. 635-37, 640-43. The Appeals Council accepted the evidence and made it part of the record, but denied review. Id. Accordingly, this Court was required to review the entire record (including the opinions of Dr. Gomez and Dr. Gray) to determine whether the ALJ's decision had applied the correct legal standards and was supported by substantial evidence. [Doc. 27] at 9 (citing Martinez v. Barnhart, 444 F.3d 1201, 1208 (10th Cir. 2006)).

         In reviewing the record, the Court found that Dr. Gomez's and Dr. Gray's opinions were more restrictive than the residual functional capacity (“RFC”) assessment adopted by the ALJ. Id. Compare Tr. 635-36, 637-38 (Dr. Gray's opinion), and Tr. 641-43 (Dr. Gomez's opinion), with Tr. 21 (ALJ's RFC). The Court further found that Dr. Gomez's and Dr. Gray's opinions appeared more restrictive than the opinion of the one-time psychological evaluator, Dr. Wynne, which was the only other mental health opinion in the record. [Doc. 27] at 9. Compare Tr. 635-36, 637-38 (Dr. Gray's opinion), and Tr. 641-43 (Dr. Gomez's opinion), with Tr. 291-94 (Dr. Wynne's report).

         Despite the fact that the treating opinions were more restrictive than the ALJ's RFC assessment, the Commissioner urged the Court to affirm. Her position was that the treating opinions “d[id] not undermine the ALJ's decision.” [Doc. 24] at 12 n.4. She cited evidence of record that she believed supported the ALJ's decision. Id. at 12. Then, she argued that Dr. Gomez's and Dr. Gray's opinions were “extreme” and “departed from the record.” Id. Both opinions were expressed on check-box forms. Id. She argued that Dr. Gomez's opinion was inconsistent with the “contemporaneous evidence” before the ALJ. Id.

         The Court was not persuaded that the treating opinions did not undermine the ALJ's decision. If the opinions of Dr. Gomez and Dr. Gray had been consistent with the ALJ's RFC assessment, then the treating opinions, indeed, would not have undermined the ALJ's decision and remand would not have been warranted. [Doc. 27] at 10 (citing Foy v. Barnhart, 139 F. App'x 39, 44 (10th Cir. 2005) (finding no reversible error where the ALJ's RFC assessment was supported by the record as a whole including a treating source opinion submitted to the Appeals Council)). But they were not consistent, and in the record as it stood before the Court, there was no discussion about the weight assigned to the opinions of Dr. Gomez and Dr. Gray. Therefore, the Court could not meaningfully review the apparent rejection of their opinions. The Court found that the correct legal standard was not applied in evaluating the opinions of Dr. Gomez and Dr. Gray because there was no discussion of their opinions.[3] Id. at 9 (citing Keyes-Zachary v. Astrue, 695 F.3d 1156, 1161 (10th Cir. 2012); 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii)). Accordingly, the Court reversed the Commissioner's denial of benefits and remanded the case for further proceedings. Id. at 10-11.

         Analysis

         Plaintiff now requests an award of attorney fees in the amount of $5, 799.80 under the Equal Access to Justice Act (“EAJA”). See [Doc. 29] at 1; [Doc. 32] at 4. The Commissioner fails to show that her position was substantially justified because her arguments do not address the position she took in the merits briefing. See [Doc. 31] at 2-4. She offers no argument or authority to explain why she was substantially justified in arguing that Dr. Gomez's and Dr. Gray's opinions did not undermine the ALJ's decision. See Id. However, the amount requested should be reduced because it includes time for non-compensable clerical work. See Id. at 4-5.

         EAJA provides for an award of attorney fees to a plaintiff when: (1) she is a prevailing party, (2) the position of the United States was not substantially justified, and (3) no special circumstances would make the award unjust. 28 U.S.C. § 2412(d)(1)(A); Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). Here, the parties do not dispute that Plaintiff is a prevailing party or that no special circumstances would make the award unjust. Instead, they disagree about whether the Commissioner's position was substantially justified and whether the fees requested are reasonable. [Docs. 29, 31, 32].

         The Commissioner bears the burden of showing that her position was substantially justified. Hackett, 475 F.3d at 1172. Her “position” collectively refers to her positions at the administrative level and before the federal courts in a given case. 28 U.S.C. § 2412(d)(2)(D). EAJA fees generally should be awarded if the ALJ's reasons for denying benefits were unreasonable, “even if the government [subsequently] advanced a reasonable litigation position.” Hackett, 475 F.3d at 1174 (internal quotation marks omitted).

         “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Id. at 1172 (quoting Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). Substantial justification is “satisfied if there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks, citations, and brackets omitted). A district court's remand order does not mean, ipso facto, that the Commissioner's position was not substantially justified; that is, her “position can be justified even though it is not correct.” Hackett, 475 F.3d at 1172 (quoting Pierce, 487 U.S. at 566).

         Similarly, a district court's order affirming a final decision by the Commissioner does not itself mean that the Commissioner's position was substantially justified. Gatson v. Bowen, 854 F.2d 379, 381 n.1 (10th Cir. 1988). For example, when the agency applies the wrong legal standard, the Commissioner “[cannot] show that h[er] position was substantially justified, either in making the initial legal error or in arguing in the ensuing litigation that there was no error.” Chester v. Apfel, 1 F. App'x 792, 795 (10th Cir. 2001); see Gatson, 854 F.2d at 380-81, 381 n.1 (holding that the Commissioner's position could not be substantially justified where the agency applied an outdated legal standard-despite the district court's initial affirmance).

         The Commissioner fails to show that her position was ...


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