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Garcia v. Berryhill

United States District Court, D. New Mexico

December 7, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.



         THIS MATTER is before the Court on Plaintiff's Motion for Attorney Fees Pursuant to Equal Access to Justice Act, with Supporting Memorandum [Doc. 34] (“Motion”), filed on October 23, 2018. The Commissioner responded on October 26, 2018. [Doc. 35]. Plaintiff replied on November 1, 2018. [Doc. 36]. The parties have consented to my entering final judgment in this case. [Doc. 23]. Plaintiff moves the Court for an award of $8, 333.50[1] in attorney fees. [Doc. 36] at 3. Having reviewed the record, the briefing, and the relevant law, the Court finds that the Motion is not well-taken and should be denied.


         Plaintiff's claim for period of disability and disability insurance benefits was denied by Defendant, and Plaintiff timely filed suit in this Court. Among other things, Plaintiff argued that the Appeals Council had erred in failing to consider additional evidence submitted to it after the administrative law judge (“ALJ”) had issued his unfavorable decision. [Doc. 24] at 8, 16-17.

[T]he additional medical records submitted to the Appeals Council strongly support the Plaintiff's position that she has suffered from terrible mental health problems and that the same preclude her from working. . . . [T]he new records document a consistent pattern of severe limitations due to psychological problems and chronic gastrointestinal discomfort. Had the ALJ been afforded the opportunity to review these records, he likely would have found the Plaintiff disabled.

Id. at 8 (citation omitted). In particular, Plaintiff argued that two medical treatment notes (one from Dr. Voloshin dated May 22, 2015, listing a GAF score[2] of 40, [3] and one from Dr. Sigl dated March 12, 2014), along with certain employment records, “demonstrate[d] a pattern of mental health problems that [were] consistent with Dr. Hughson's report. Had Dr. Hughson's report been afforded proper weight, the Plaintiff would likely have been found disabled.” Id. at 17.

         Dr. Hughson's opinion had been adopted in part by the ALJ. See Tr. 15, 17-19. However, the ALJ rejected Dr. Hughson's opinion on Plaintiff's ability to function as indicated by a GAF score of 45-48. Tr. 18.

         Defendant responded in opposition, exclusively attacking the two treatment notes cited by Plaintiff. [Doc. 29] at 16-18. She highlighted portions of Dr. Sigl's March 12, 2014 note that tended to show that Plaintiff's depression and functioning were not severe, including a GAF score of 64.[4] Id. at 16-17. Further, Defendant argued that Dr. Voloshin's May 22, 2015 note did not reflect any actual treatment or any current GAF assessment but, instead, incorporated information and a GAF score from Plaintiff's preceding visit in February of 2014. Id. at 17. Defendant did not make any argument about the employment records or any of the other additional documents submitted to the Appeals Council; she did not mention anything other than these two notes. See Id. at 1-18.

         In reply, Plaintiff maintained that “there [were] multiple GAFs from multiple providers that the ALJ and Appeals Council failed to consider[, which] could be construed to have reinforced Dr. Hughson's opinions.” [Doc. 30] at 4-5 (footnote omitted).

         The Court was persuaded by Plaintiff's arguments and found that the Appeals Council erred in declining to consider the additional evidence submitted to it. [Doc. 32] at 5-9. Additional evidence should be considered only if it is (1) new, (2) chronologically pertinent, and (3) material. 20 C.F.R. § 404.970(b) (2016). The Court found that the additional evidence submitted to the Appeals Council qualified as (1) new and (2) chronologically pertinent, expressly noting that Defendant had not argued otherwise. [Doc. 32] at 7.

         As to (3) the materiality of the additional evidence, the Court agreed with Plaintiff. “[C]onsidering that Dr. Hughson had already assessed a GAF score of 45-48, and considering that the new evidence contained at least two other GAF scores in the 40s, there [wa]s a reasonable possibility that, if considered, the new evidence would change the outcome.” Id. at 8-9. (citing Tr. 448 (Dr. Hughson's GAF score) and Tr. 235, 640 (two other very low GAF scores)). Accordingly, the Court remanded the case for consideration of the additional evidence. [Doc. 32] at 9. The Court did not address the other errors alleged by Plaintiff in order to allow the Appeals Council the first opportunity to evaluate the ALJ's decision in light of the complete record. Id. (citing Chambers v. Barnhart, 389 F.3d 1139, 1143 (10th Cir. 2004); Threet v. Barnhart, 353 F.3d 1185, 1191 (10th Cir. 2003)). Plaintiff now requests attorney fees in the amount of $8, 333.50, under the Equal Access to Justice Act (“EAJA”). [Doc. 36] at 3.


         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) (2012); 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. 34, 35, 36].

         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 ...

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