United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
STEPHAN M. VIDMAR UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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.
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].
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).
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).
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
arguments regarding the counter clerk (photofinishing) job
were not substantially justified.
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 ...