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 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.
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
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).
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.
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. (Doc. 27).
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.
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
The Commissioner's Position Was Not Substantially
Ms. Warwick's Opinions
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