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Mills v. Berryhill

United States District Court, D. New Mexico

October 26, 2017

ROY MILLS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          HONORABLE CARMEN E. GARZA, UNITED STATE MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff Roy Mills' Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, With Memorandum in Support (the “Motion”), (Doc. 26), filed September 7, 2017; Defendant's Response to Plaintiff's Motion for Attorney Fees Under Equal Access to Justice Act (the “Response”), (Doc. 27), filed September 15, 2017; and Plaintiff's Reply in Support of Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the “Reply”), (Doc. 30), filed October 6, 2017. Having reviewed the Motion, the Response, the Reply, and the relevant law, the Court finds that Plaintiff's Motion is well-taken and should be GRANTED.

         I. Background

         On April 23, 2013, Mr. Mills filed applications for supplemental security income and disability insurance benefits, alleging disability beginning August 2, 2011. (Administrative Record “AR” 16). His applications were denied initially and upon reconsideration, (AR 16), and following a hearing before Administrative Law Judge (“ALJ”) Ann Farris, (AR 29). Mr. Mills thereafter filed for review by the Appeals Council, (AR 12), which was denied, (AR 7-9), making the ALJ's decision the final decision of the Commissioner of the Social Security Administration (the “Commissioner”).

         Mr. Mills then appealed to this Court, arguing the ALJ erred in considering and weighing the opinions of Psychiatric Mental Health Practitioner (“PMHNP”) Jayanna Warwick and non-examining State Agency psychologist Carol Mohney, Ph.D. (Doc. 17 at 14-19). Finding that the ALJ failed to properly consider and weigh Ms. Warwick's and Dr. Mohney's opinions, the Court granted Mr. Mills' Motion and remanded the Commissioner's decision. (Doc. 24).

         Mr. Mills now moves the Court 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. Id. 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. (Doc. 27).

         “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Id. at 1172 (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, 125 Fed.Appx. 913, 916 (10th Cir. 2005) (unpublished) (citing Martinez v. Sec'y of Health and Human 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 Position Was Not Substantially Justified

         1. Ms. Warwick's Opinions

         Ms. Warwick performed a Medical Assessment of Ability to Do Work-Related Activities (Mental) for Mr. Mills, in which she found that Mr. Mills has marked difficulty in: remembering locations and work-like procedures; understanding and remembering detailed instructions; and accepting instructions and responding appropriately to criticism from supervisors. (AR 774-75). Ms. Warwick also found that Mr. Mills has moderate difficulty in: understanding and remembering very short and simple instructions; carrying out detailed instructions; maintaining attention and concentration for extended periods of time (i.e. 2-hour segments); making simple work-related decisions; completing a normal workday and workweek without interruptions from psychological-based symptoms, and performing at a consistent pace without an unreasonable number and length of rest periods; getting along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintaining socially ...


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