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 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 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.
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
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 of 40,  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.
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.
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
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.
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).
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.
(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.
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].
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