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Greer v. Saul

United States District Court, D. New Mexico

September 30, 2019

RANDALL GREER, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          ORDER

          KIRTAN KHALSA, UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Plaintiff Randall Greer’s Opposed Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, with Memorandum in Support (Doc. 26), filed February 13, 2019. Defendant filed a response in opposition to Plaintiff’s motion on February 27, 2019, and Plaintiff filed a reply in support of it on March 26, 2019. (Docs. 27, 30.) The Court, having considered the pleadings, the record, and the relevant law, and being otherwise fully advised, FINDS that Plaintiff’s motion is well-taken and should be GRANTED.

         In his motion, Plaintiff seeks an award of attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of $6, 341.55.[1] (Doc. 26 at 1.) The EAJA provides that a fee award is required 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 parties dispute whether the Commissioner’s “position” was “substantially justified.” (Docs. 26, 27, 30.)

         The government’s “position, ” in this context, refers to both the Commissioner’s position in the federal civil case and the agency’s actions at the administrative level. 28 U.S.C. § 2412(d)(2)(D); see also Hackett, 475 F.3d at 1170 (finding that government must justify both its position in underlying administrative proceedings and in subsequent court litigation). “EAJA fees generally should be awarded where the government's underlying action was unreasonable even if the government advanced a reasonable litigation position.” Hackett, 475 F.3d at 1174 (quotation marks omitted). The Commissioner bears the burden of proving that his position was substantially justified. Hackett, 475 F.3d at 1172 (citing Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)).

         The test for substantial justification is one of reasonableness in law and fact. Gilbert, 45 F.3d at 1394. The government’s position must be “justified in substance or in the main – that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quotation marks omitted). The government’s “position can be justified even though it is not correct.” Hackett, 475 F.3d at 1172 (quoting Pierce, 487 U.S. at 565). Moreover, a lack of substantial evidence on the merits does not necessarily mean that the government’s position was not substantially justified. Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir. 1988).

         In deciding an EAJA fee motion, the Court must treat the case “as an inclusive whole, rather than as atomized line-items.” Hackett, 475 F.3d at 1174 n.1. However, the Court should “focus on issues a party has prevailed on in the district court.” Evans v. Colvin, 640 Fed.App’x 731, 734 (10th Cir. 2016). “[T]he fact that the Commissioner prevailed in the district court on most issues” will not result in a finding of substantial justification where the Commissioner nevertheless “acted unreasonably in denying benefits at the administrative level.” Hackett, 475 F.3d at 1174 n.1.

         Plaintiff raised four arguments for judicial review of the Commissioner’s final decision denying his disability application.[2] Following a meticulous review of the entire record, the Court remanded Mr. Greer’s action to the Social Security Administration, finding that the ALJ failed to resolve the apparent conflict between the Dictionary of Occupational Titles (“DOT”) and the testimony of the impartial vocational expert (“VE”) regarding the reasoning level requirements of the jobs the VE testified a hypothetical individual with Plaintiff’s residual functional capacity (“RFC”) could perform.[3] (Doc. 24 at 23-26.) The Court further found that this error was not harmless.[4] (Id. at 26-31.)

         As noted above, the Commissioner bears the burden of proving that his position was substantially justified. Hackett, 475 F.3d at 1172. Here, however, the Commissioner limits his response to attempting to justify his litigation position regarding whether the ALJ’s error was harmless. (See generally Doc. 27.) In so doing, he completely fails to address whether his litigation position was legally and factually reasonable with respect to the error on which this case turned, i.e., the ALJ’s failure to resolve the apparent conflict between the DOT and the VE’s testimony at the administrative hearing. (Id.) He also fails to address whether the ALJ acted reasonably, though erroneously, in this respect. (Id.) By omitting any argument or analysis on these issues, the Commissioner has failed to meet his burden of proving that his position was substantially justified.

         The Commissioner does argue that, “even if the ALJ erred in evaluating GED [reasoning] levels, the Commissioner had a reasonable basis for advancing a harmless error argument in litigation, ” citing Evans, 640 Fed.App’x at 731, for the proposition that “the government’s position is substantially justified when the government advances a reasonable litigation position that cures unreasonable agency action.” (Doc. 27 at 4 (quotation marks and brackets omitted).) However, the Commissioner neglects to acknowledge that he devoted about three pages of his response to Plaintiff’s motion to remand to his position that there was no apparent conflict between the DOT and the VE’s testimony, and only one paragraph to his “alternative” position that the remaining job existed nationally in high enough numbers to avoid triggering analysis under Trimiar v. Sullivan, 966 F.2d 1326 (10th Cir. 1992). (Doc. 21 at 17-21.) As previously noted, EAJA “fees generally should be awarded where the government's underlying action was unreasonable even if the government advanced a reasonable litigation position, ” Hackett, 475 F.3d at 1174; and, this rule seems particularly apt where, as here, the Commissioner has failed to offer any justification for the bulk of his litigation position on the relevant issues.

         IT IS THEREFORE ORDERED THAT:

         1. Plaintiff’s Opposed Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (Doc. 26) is GRANTED;

         2. Plaintiff is awarded $6, 341.55 in attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d); and, 3. If Plaintiffs counsel receives attorney fees under both the EAJA and 42 U.S.C. § 406(b) of the Social Security Act, Plaintiffs counsel shall refund the smaller award to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

         IT IS ...


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