United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA UNITED STATE MAGISTRATE JUDGE
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.
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
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).
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).
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.” 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.
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).
The Commissioner's Underlying Position and 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).
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 ...