United States District Court, D. New Mexico
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE
FASHING UNITED STATES MAGISTRATE JUDGE.
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
Farden initially applied for Supplemental Security Income
benefits on March 17, 2008, alleging disability since March
13, 2007. AR 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.
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.
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.
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.
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,  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.
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.
Standard of Review
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).
The Commissioner's position was not substantially
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