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Sherman v. Berryhill

United States District Court, D. New Mexico

August 30, 2017

GREGORY PAUL SHERMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA UNITED STATE MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Gregory Paul Sherman's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, with Memorandum in Support (the “Motion”), (Doc. 26), filed June 28, 2017; Defendant Commissioner Nancy A. Berryhill's Defendant's Opposition to Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the “Response), (Doc. 27), filed July 10, 2017; and Plaintiff's Reply in Support of Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the “Reply”), (Doc. 28), filed July 24, 2017. Having reviewed the Motion, the Response, the Reply, and the relevant law, the Court finds that Mr. Sherman's Motion is well-taken and should be GRANTED.

         I. Background

         Mr. Sherman applied for disability insurance benefits and supplemental security income in March 2012, alleging disability due to bipolar disorder. (Administrative Record “AR” 68). Both applications were denied initially on November 28, 2012, and on reconsideration on March 29, 2013. (AR 94-121). Mr. Sherman requested a hearing before an Administrative Law Judge (“ALJ”), who also denied Mr. Sherman's applications. (AR 13-26). Mr. Sherman requested review by the Appeals Council, which denied his request, making the ALJ's decision the Commissioner's final decision.

         Mr. Sherman then appealed to this Court, arguing the ALJ legally erred in her consideration and weighing of several medical opinions in the record. (Doc. 17 at 8-19). The Court agreed that the ALJ failed to follow the appropriate legal standards regarding two opinions-those from Kevin Rexroad, M.D., Mr. Sherman's treating physician, and Paula Hughson, M.D., a consultative examiner. (Doc. 24 at 7-14). Accordingly, the Court reversed the Commissioner's decision and remanded for a rehearing. (Doc. 24 at 14).

         Mr. Sherman now moves for attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 26). He argues that an award of attorney's fees is appropriate because he was 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. 26 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 only disputes whether her position was substantially justified.

         “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Id. (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.” Id.

         “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).

         B. The Commissioner's Underlying Position and the Court's Disposition

         The Court reversed and remanded the ALJ's decision because of the ALJ's failure to follow the correct legal standards and support her decision with substantial evidence. In her decision, the ALJ recognized Dr. Rexroad was Plaintiff's treating physician, but she found Dr. Rexroad's opinion “not compatible with his treatment records as a whole.” (AR 23). According to the ALJ, Dr. Rexroad “routinely documented good overall mental functioning” and his notes contained “few abnormal findings.” (AR 23). Finally, the ALJ stated “there is no support for Dr. Rexroad's findings of marked restriction in activities of daily living, social functioning, or concentration, persistence, or pace.” (AR 23). However, the ALJ did not discuss or explain how Dr. Rexroad's opinion was incompatible with his own treatment records or otherwise unsupported by the record. Ultimately, the ALJ gave Dr. Rexroad's opinions “limited weight.” (AR 23).

         The ALJ also afforded Dr. Hughson's opinions limited weight. (AR 23). Dr. Hughson examined Plaintiff, prepared a report, and concluded that he would not be able to support himself due to his impairments. (AR 431). The ALJ reasoned that Dr. Hughson's report “documents a handful of mostly mild clinical deficits, ” therefore her “conclusion seems disproportionate to her findings, to an extent that suggests she relied too heavily on [Mr. Sherman's] subjective statements, ” which the ALJ did not find credible. (AR 23). Further, the ALJ noted Dr. Hughson is not a treating source, and stated the “broad GAF score ...


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