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 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.
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”).
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.
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.
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.
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 Underlying Position and the
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).
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 ...