United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
HONORABLE CARMEN E. GARZA, CHIEF UNITED STATE MAGISTRATE
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.
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.
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).
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.
Standard of Review
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.
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.
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).
Commissioner's Underlying Position and the Court's
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).
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, ...