United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR, United States Magistrate Judge
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.
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 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)).
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).
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.
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. 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.
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.
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].
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).
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).
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
Commissioner fails to show that her position was