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