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Lopez v. Berryhill

United States District Court, D. New Mexico

December 13, 2017

WILLEY LOPEZ, 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 Willey Lopez's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, With Memorandum in Support (the “Motion”), (Doc. 34), filed October 23, 2017; Defendant's Response to Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (the “Response”), (Doc. 35), filed November 6, 2017; and Plaintiff's Reply in Support of Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (the “Reply”), (Doc. 38), filed December 5, 2017. Having reviewed the Motion, Response, Reply, and the relevant law, the Court finds that Mr. Lopez's Motion is well-taken and should be GRANTED.

         I. Background

         In August 2012, Mr. Lopez filed an application for supplemental security income, claiming that back problems, paranoia, anxiety, and learning problems prevented him from working. (Administrative Record “AR” 69-70). His application was denied initially and upon reconsideration, (AR 81), and following a hearing before Administrative Law Judge (“ALJ”) Barry O'Melinn, (AR 34). Mr. Lopez thereafter filed for review by the Appeals Council, which was denied, making the ALJ's decision the final decision of the Commissioner of the Social Security Administration (the “Commissioner”).

         Mr. Lopez then appealed to this Court, arguing the ALJ erred by improperly rejecting the opinion of Carletta Thompson, M.D., and by improperly evaluating Mr. Lopez's character for truthfulness rather than Mr. Lopez's symptoms. (Doc. 20 at 1). Finding that the ALJ erred in his consideration of Dr. Thompson's opinions, the Court granted Mr. Lopez's Motion and remanded the Commissioner's decision. (Doc. 32).

         Mr. Lopez now moves the Court for attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 34). 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.

         “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 Underlying Position and the Court's Disposition

         Dr. Thompson evaluated Mr. Lopez two times and provided a Medical Assessment of Ability to Do Work-Related Activities (Physical). (AR 517-529; 582). Dr. Thompson opined that Mr. Lopez: cannot maintain physical efforts for long periods without a need to rest due to pain; can only occasionally lift less than 10 pounds and frequently lift less than five pounds; can stand or walk less than 2 hours in an 8-hour workday; can sit less than 4 hours in an 8-hour workday; has unlimited ability to push or pull; can handle and finger repetitively but is limited in reaching in all directions; can occasionally kneel and stoop; and can never crouch or crawl. (AR 582).

         The ALJ gave Dr. Thompson's opinions little weight for three reasons: Dr. Thompson only saw Mr. Lopez twice; Dr. Thompson supported her opinions with “very few objective medical findings” and appeared to rely on Mr. Lopez's statements, which the ALJ found not credible; and Dr. Thompson's findings were inconsistent with the record as a whole, including the ...


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