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Gonzales v. Berryhill

United States District Court, D. New Mexico

December 20, 2017

DAVID MICHAEL GONZALES, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, with Memorandum in Support [Doc. 33] (“Motion”), filed on November 15, 2017. The Commissioner responded on November 17, 2017. [Doc. 34]. Plaintiff replied on November 30, 2017. [Doc. 35]. The parties have consented to the undersigned's entering final judgment in this case. [Doc. 9]. Plaintiff moves the Court for an award of $5, 052.30 in attorney fees. [Doc. 33] at 1. Having reviewed the record, the briefing, and the relevant law, the Court finds that the Motion is well-taken and should be granted. Plaintiff will be awarded $5, 052.30 in attorney fees.

         Background

         Plaintiff's claim for supplemental security income was denied by Defendant, and he timely filed suit in this Court. At step five the Administrative Law Judge (“ALJ”) found that, based on Plaintiff's residual functional capacity (“RFC”), age, education, and work experience and the testimony of the vocational expert (“VE”), Plaintiff could perform other work. Tr. 44-45. Specifically, she found that Plaintiff could perform the functions of “presser, hand” (Dictionary of Occupational Titles (“DOT”) number 363.684-018); “blending tank tender, helper” (DOT number 520.687-066); and counter clerk (photofinishing) (DOT number 249.366-010). As was required to ultimately find Plaintiff not disabled, the ALJ found that these other jobs existed in “significant numbers in the national economy.” Id. Tr. 44-45.

         In granting Plaintiff's motion and remanding the case, the Court determined that these step-five findings were not supported by substantial evidence. [Doc. 31] at 13-18. As to the first job, hand presser, the parties agreed its requirements exceeded Plaintiff's RFC assessment. Id. at 14. As to the second job, blending tank tender helper, the Court found that its requirements exceeded Plaintiff's RFC. As to the third and final job, counter clerk (photofinishing), the Court found that there was not substantial evidence to support the ALJ's finding it existed in significant numbers in the national economy. Lastly, the Court declined Defendant's invitation to supply another job, bakery helper, because it simply had not been identified by the ALJ. Id. at 15-16 at n.5.

         Plaintiff now requests an award of attorney fees in the amount of $5, 052.30 under the Equal Access to Justice Act (“EAJA”). [Doc. 33] at 1. The Commissioner opposes any award because, she argues, her position was substantially justified. [Doc. 34]. She makes no argument about the first two jobs, hand presser and blending tank tender helper. Instead, she focuses solely on the third job, counter clerk (photofinishing) and the job that does not appear anywhere in the ALJ's decision, bakery helper.

         Standard

         EAJA provides for an award of attorney fees to a plaintiff when: (1) he is a 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). Here, the parties do not dispute that Plaintiff is a prevailing party or that no special circumstances would make the award unjust. Instead, they disagree about whether the Commissioner's position was substantially justified. [Docs. 33, 34, 35].

         The Commissioner bears the burden of showing that her position was substantially justified. Hackett, 475 F.3d at 1172. Her “position” collectively refers to her positions at the administrative level and before the federal courts in a given case. 28 U.S.C. § 2412(d)(2)(D). EAJA fees generally should be awarded if the ALJ's reasons for denying benefits were unreasonable, “even if the government [subsequently] advanced a reasonable litigation position.” Hackett, 475 F.3d at 1174 (internal quotation marks omitted).

         “The test for substantial justification in this circuit is one of reasonableness in law and fact.” Id. at 1172 (quoting Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). Substantial justification is “satisfied if there is a genuine dispute or if reasonable people could differ as to the appropriateness of the contested action.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks, citations, and brackets omitted). A district court's remand order does not mean, ipso facto, that the Commissioner's position was not substantially justified; that is, her “position can be justified even though it is not correct.” Hackett, 475 F.3d at 1172 (quoting Pierce, 487 U.S. at 566).

         Similarly, a district court's order affirming a final decision by the Commissioner does not itself mean that the Commissioner's position was substantially justified. Gatson v. Bowen, 854 F.2d 379, 381 n.1 (10th Cir. 1988). For example, when the agency applies the wrong legal standard, the Commissioner “[cannot] show that h[er] position was substantially justified, either in making the initial legal error or in arguing in the ensuing litigation that there was no error.” Chester v. Apfel, 1 F. App'x 792, 795 (10th Cir. 2001); see Gatson, 854 F.2d at 380-81, 381 n.1 (holding that the Commissioner's position could not be substantially justified where the agency applied an outdated legal standard-despite the district court's initial affirmance).

         Defendant's arguments regarding the counter clerk (photofinishing) job were not substantially justified.

         At the hearing, the VE initially testified that there were 400, 000 counter clerk jobs in the national economy. See Tr. 73. However, on cross examination, the VE, Mr. Griner, admitted the number was unreliable:

Q: Okay and with regards to these jobs, Mr. Griner, the counter clerk, the bakery worker, and the blending tank tender helper, those jobs don't correspond to that specific title that for example, the ...

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