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Guinn v. Berryhill

United States District Court, D. New Mexico

January 30, 2018

LIZ JENNY GUINN, 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. 31] (“Motion”), filed on January 5, 2018. The Commissioner responded on January 9, 2018. [Doc. 32]. Plaintiff replied on January 23, 2018, [Doc. 33], and filed an Erratum on January 24, 2018, [Doc. 34]. 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, 554.14 in attorney fees and an additional $400 in costs. [Doc. 31] 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, 954.14, representing $5, 554.14 in attorney fees and an additional $400 in costs.[2]

         Background

         Plaintiff's claim for period of disability and disability insurance benefits was denied by Defendant, and she timely filed suit in this Court. The Court found that the Administrative Law Judge (“ALJ”) had impermissibly failed to explain why she rejected a portion of Dr. Cherry's opinion. [Doc. 29] at 5-6.

         Dr. Cherry had offered a non-examining opinion that Plaintiff had moderate limitations in the ability to (1) “complete a normal workday and workweek without interruption from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, ” and (2) “interact appropriately with the general public.” Tr. 373. The ALJ gave “great weight” to Dr. Cherry's opinion. Tr. 28. Nevertheless, the ALJ neither incorporated these limitations into the residual functional capacity (“RFC”) assessment, [3]nor explained their omission. See Tr. 25-29. Accordingly, on October 10, 2017, the Court reversed the Commissioner's final decision, granted Plaintiff's motion, and remanded the case for further proceedings. [Doc. 29] at 10-11.

         Plaintiff now requests an award of $5, 554.14 in attorney fees under the Equal Access to Justice Act (“EAJA”) and an additional $400 in costs. [Doc. 31] at 1. Defendant opposes any award of attorney fees because, she argues, her positions in the merits briefing were substantially justified. [Doc. 33] at 3-8.

         Standard

         EAJA provides for an award of attorney fees to a plaintiff when: (1) she 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. 31, 32, 33].

         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 was not substantially justified in arguing that the ALJ was permitted to rely on the Section III findings and ignore the Section I findings.

         Defendant argues that her positions in the merits briefing were substantially justified. She defended the ALJ's evaluation of Dr. Cherry's opinion on the ground that “the ALJ was not required to include the various limitations set forth in Section I of the worksheet because the ALJ relied on [Dr. Cherry]'s ultimate opinion set forth in the Section III narrative section of the form.” [Doc. 32] at 4. She argues that the agency's Program Operations Manual Systems (“POMS”) and circuit case law support her argument. Id. Defendant's characterization of these authorities is not substantially justified.

         That an ALJ may rely on the Section III findings and ignore the Section I findings is at odds with the plain language of the relevant authorities. Silva v. Colvin, 203 F.Supp.3d 1153, 1159-61 (D.N.M. 2016). In the merits briefing, Defendant quoted from the POMS, which explains that Section I is “merely a worksheet” and “does not constitute the RFC assessment.” [Doc. 24] at 13 (quoting POMS DI § 24510.060) ...


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