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Dimas v. Berryhill

United States District Court, D. New Mexico

November 2, 2018

SANDRA YEVETTE DIMAS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner for the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          THE HONORABLE CARMEN E. GARZA, CHIEF UNITED STATE MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff Sandra Yevette Dimas' Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, With Supporting Memorandum (the “Motion”), (Doc. 24), filed October 5, 2018; Defendant's Response to Plaintiff's Motion for Attorney Fees under Equal Access to Justice Act (the “Response”), (Doc. 25), filed October 12, 2018; and Plaintiff's Reply to Defendant's Response to Motion for Attorney Fees under Equal Access to Justice Act (the “Reply”), (Doc. 26), filed October 14, 2018. Having reviewed the Motion, Response, Reply, and the relevant law, the Court finds that Ms. Dimas' Motion is well-taken and should be GRANTED.

         I. Background

         In July 2016, Ms. Dimas filed for disability insurance benefits, claiming that fibromyalgia, psoriatic arthritis, depression, anxiety, chronic fatigue, and chronic pain limited her ability to work. (Administrative Record “AR” 163). Ms. Dimas' claim was denied initially, (AR 99-102), upon reconsideration, (AR 104-08) and following a hearing before administrative law judge (“ALJ”) Eric Weiss, (AR 17-30). Ms. Dimas then requested review by the Appeals Council, (AR 10-11), which was denied, (AR 1-4), making the ALJ's decision the final decision of the Social Security Administration.

         Ms. Dimas then appealed to this Court, arguing the ALJ erred in evaluating and weighing medical opinion evidence, discussing her past work, and adopting the vocational expert's testimony. (Doc. 17 at 5-23). Finding that the ALJ erred in considering the opinion of Alisha Parada, M.D., Ms. Dimas' treating physician, the Court granted Ms. Dimas' Motion and remanded the Commissioner's decision. (Doc. 22).

         Ms. Dimas now petitions the Court for attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 24). She argues that an award of attorney fees is appropriate because she was the prevailing party, her 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.

         II. Analysis

         A. Standard of Review

         Pursuant 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.

         In this circuit, the test for substantial justification is one of reasonableness in both law and fact. Id. (citing Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). As defined by the United States Supreme Court, substantial justification requires the government's position 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 government's “position” includes both the government's stance in the underlying agency action and during any subsequent litigation. Id.

         Courts are more likely to find the government's position is substantially justified when an area of law is “unclear or in flux.” 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, 1383 (10th Cir. 1987)). Indeed, the government's position may be justified even though it is incorrect. Hackett, 475 F.3d at 1172 (citing Pierce, 487 U.S. at 566, n.2). Ultimately, it is the government that bears the burden of proving its position was substantially justified. Gilbert, 45 F.3d at 1394 (internal citations omitted).

         B. The Commissioner's Underlying Position and the Court's Disposition

         Ms. Dimas first established care with Dr. Parada in January 2015. (AR 402-03). Throughout 2015 and early 2016, Ms. Dimas regularly visited Dr. Parada to receive trigger point injections to increase her range of motion and alleviate her shoulder pain. (AR 443). Over the course of these visits, Dr. Parada consistently noted muscle spasms around Ms. Dimas' right shoulder and a decreased range of motion. (AR 26). In addition, Dr. Parada recorded Ms. Dimas' self-reports of shoulder pain and noted any progress or improvement in her symptoms since her last appointment. (AR 26).

         Nevertheless, the ALJ concluded there was “no evidence” that Ms. Dimas suffered from any upper or lower extremity deficits. (AR 26). While the ALJ noted Ms. Dimas' continued appointments with Dr. Parada to receive trigger point injections, he never discussed any of Dr. Parada's findings of muscle spasms, ...


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