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Farden v. Berryhill

United States District Court, D. New Mexico

October 10, 2017

DIANE MARIE FARDEN, Plaintiff,
v.
NANCY A. BERRYHILL, [1]Acting Commissioner of the Social Security Administration, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT

          LAURA FASHING UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER comes before the Court on plaintiff Diane Farden's request for attorney's fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, filed on, August 2, 2017, and fully briefed on August 21, 2017. Docs. 33, 35, 36. The parties consented to my entering a final judgment in this case. Doc. 30. Having reviewed the parties' submissions and being fully advised, I find that an award of attorney's fees is appropriate, but that the amount of fees requested is excessive and unreasonable. I therefore GRANT the motion in part and DENY the motion in part.

         I. Background Facts

         Ms. Farden initially applied for Supplemental Security Income benefits on March 17, 2008, alleging disability since March 13, 2007. AR[2] 223-29. Ms. Farden alleged she was disabled due to arthritis in her spine, headaches, depression, insomnia, bulging discs in her back, pain in both her legs, shooting pain from the bottom of her spine to the top of her head, degenerative disc disease, and a ventral hernia. AR 240. At the time of her March 2008 application, Ms. Farden lived in Dallas, Texas. AR 224. While her application was pending, Ms. Farden moved to Clovis, New Mexico, and from Clovis, she moved to California. AR 77- 79. In June of 2014, Ms. Farden moved back to Clovis, New Mexico. AR 1174.

         Ms. Farden's March 2008 application for benefits was denied initially and upon reconsideration, and Ms. Farden requested a hearing before an ALJ. AR 98-99, 109-11. On February 17, 2010, ALJ Lowell Fortune conducted a hearing, but because he did not have all of the relevant medical evidence, he continued the hearing. AR 53-88. ALJ Fortune held a supplemental hearing on June 4, 2010. AR 29-52. ALJ Fortune issued his unfavorable decision on July 21, 2010. AR 9-28. The Appeals Council denied Ms. Farden's request for review, and on March 29, 2012, Ms. Farden appealed the Commissioner's decision to the United States District Court for the Central District of California. AR 1007-11, 1013-15. The district court in California reversed and remanded the Commissioner's decision for further proceedings on March 25, 2013. AR 1020-43.

         While ALJ Fortune's decision was under review in California, Ms. Farden filed a second application for supplemental security income on October 7, 2011, continuing to allege disability as of March 13, 2007. AR 921. Her second application was denied initially and upon reconsideration, and ALJ Jennifer Simmons held a hearing on May 21, 2012. Id. ALJ Simmons issued an unfavorable decision on July 17, 2012. AR 918-932, 1081-92. The Appeals Council consolidated Ms. Farden's appeal of ALJ Simmons' decision with ALJ Fortune's remanded decision and issued an order remanding the consolidated case to an administrative law judge. AR 913-17, 1048-52. ALJ Michael Hertzig held a hearing on March 20, 2015. AR 872-912. ALJ Hertzig issued his unfavorable decision on May 15, 2015. AR 833-69. ALJ Hertzig's decision was the decision at issue in this appeal. See Doc. 2.

         Ms. Farden raised six main arguments on appeal. She argued that ALJ Hertzig erred in: (1) finding Ms. Farden's depressive disorder nonsevere at step two; (2) failing to follow the mandates of the U.S. District Court and the Appeals Council; (3) finding that Ms. Farden's impairments did not meet Listing 14.06; (4) finding that Ms. Farden could perform her past relevant work; (5) failing to accurately give his RFC to the vocational expert (“VE”); and (6) improperly relying on the VE's testimony that Ms. Farden was capable of performing other work.

         Within Ms. Farden's first point of error, she made three sub-arguments: (1) that ALJ Hertzig erred in finding her depressive disorder nonsevere by using vague and imprecise terms to describe her medical treatment, Doc. 23 at 12-13; that ALJ Hertzig failed to follow Social Security Ruling (“SSR”) 96-7p, [3] id. at 13-14; and that ALJ Hertzig exaggerated or misstated evidence in order to determine that her depressive disorder was nonsevere, id. at 14-15. The Court ultimately reversed the Commissioner's decision and remanded the case based on ALJ Hertzig's failure to adequately analyze Ms. Farden's credibility pursuant to SSR 96-7p. Doc. 31.

         Ms. Farden now seeks attorney's fees and costs pursuant to the Equal Access to Justice Act (“EAJA”). The Commissioner opposes the motion on the grounds that the Commissioner's position was substantially justified and that the fees requested are excessive and unreasonable. Doc. 35. I agree with the Commissioner that the fees requested are excessive and unreasonable, and therefore grant Ms. Farden's motion in part and deny it in part.

         II. Standard of Review

         EAJA provides for an award of attorney fees to a plaintiff when: (1) he or she is the 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). However, the fees should be “reasonable.” Comm'r, INS v. Jean, 496 U.S. 154, 161 (1990); Hackett, 475 F.3d at 1168. Once the court determines that the government's position was not substantially justified, “then the court should determine what fee is merited for all aspects of the litigation that deal with creating a benefit to the claimant.” Gallaway v. Astrue, 297 Fed.Appx. 807, 809 (10th Cir. 2008) (unpublished).

         III. Discussion

         A. The Commissioner's position was not substantially justified.

         “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). “Thus, the government's position must be ‘justified to a degree that could satisfy a reasonable person.'” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). In other words, the government's position must have had a “reasonable basis both in law and fact.” Pierce, 487 U.S. at 565. “The government's ‘position can be justified even though it is not correct.'” Hackett, 475 F.3d at 1172 (quoting Pierce 487 U.S. at 566 n.2). EAJA “fees generally should be awarded where the government's underlying action was unreasonable even if the government advanced a reasonable litigation position.” Id, 475 F.3d at 1174. In determining whether the Commissioner's position was substantially justified, the Court must consider the ...


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