United States District Court, D. New Mexico
ORDER AWARDING ATTORNEY FEES UNDER EAJA
MATTER is before the Court on Plaintiff's Motion for
Attorney Fees and Costs Pursuant to the Equal Access to
Justice Act (“EAJA”), with Supporting Memorandum
(Doc. 31), filed on September 6, 2019. The
Commissioner opposes an award of EAJA fees and argues that
his position opposing Plaintiff's Motion to Remand was
substantially justified. Doc. 34 at 1. Additionally,
he maintains that the fees and costs requested by Plaintiff
herein are unreasonable. Id. at 7-11. Having
reviewed the motion and exhibits, briefs submitted by the
parties, and the relevant law, the Court finds that an award
of fees in the amount of $7, 539.10 is reasonable in this
The Court will grant Plaintiff's Motion in part, because
the Agency's position was not substantially
Motion to Remand, Plaintiff sought remand of the
Commissioner's denial of her application for social
security benefits, arguing that the ALJ failed: (1) to
consider the opinions of her two treating physician
assistants without explanation; (2) to explain his finding
that her knee condition and obesity did not meet or equal
Listing 1.02; (3) to explain how her obesity affected her
functioning at Step Four; and (4) to conduct a
function-by-function assessment of her exertional
limitations. Doc. 25 at 2. The Court found
in Plaintiff's favor on her first claim of error (i.e.
that the ALJ failed to properly consider the opinions of her
treating physician assistants) and declined to address her
remaining claims, noting that they may be affected by the
ALJ's treatment of the case on remand. Doc. 29
now seeks attorney fees pursuant to EAJA. “Under EAJA,
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) (quoting 28 U.S.C. §
241(d)(1)(A)). The parties here disagree on the second
factor: whether the position of the Commissioner was
“substantially justified.” “The test for
substantial justification in this circuit is one of
reasonableness in law and fact.” Gilbert v.
Shalala, 45 F.3d 1391, 1394 (10th Cir 1995) (citing
Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir.
1992)). The Commissioner bears the burden to establish that
her position was substantially justified, both on appeal to
the district court and during the underlying administrative
proceedings. Hackett, 475 F.3d at 1172; see also
Tomlinson v. Colvin, No. Civ. 15-699 STE, 2016 WL
5316740, at *1 (W.D. Okla. Sept. 22, 2016). “Therefore,
fees should generally be awarded where the agency's
underlying action was unreasonable even if the government
advanced a reasonable litigation position.”
Tomlinson, 2016 WL 5316740, at *1 (quoting
Hackett, 475 F.3d at 1174).
parties and the Court agree that the ALJ here neglected to
address the opinions of Ms. Sheffler and Ms. Burks,
Plaintiff's treating physician assistants, in his
decision. Indeed, the Commissioner conceded that it would
have been “preferable for the ALJ to have explicitly
addressed” these opinions. Doc. 26 at 18.
Nevertheless, in response to Plaintiff's Motion to
Remand, the Commissioner asserted that the ALJ had not
thereby committed reversible error. Id.
Plaintiff applied only for disability insurance benefits, she
was required to establish disability within a small window of
time, between November 6, 2014, and December 31, 2014.
Doc. 29 at 2. The Commissioner insisted that neither
Ms. Sheffler's nor Ms. Burks' opinion “had an
effect on the outcome of the case, ” as both opinions
were written more than a year and half after Plaintiff's
date last insured. Id. at 16-17. The Court
Tenth Circuit law, opinions authored after the date last
insured do sometimes bear on the nature and severity
of a claimant's condition within the relevant period.
See, e.g., Hamlin v. Barnhart, 365 F.3d
1208, 1217 (10th Cir. 2004) (holding that the ALJ erred by
neglecting to discuss an RFC evaluation authored by a
treating source after the claimant's date last
insured, where the evaluation covered the relevant period);
Baca v. Dep't of Health & Human Servs., 5
F.3d 476, 479 (10th Cir.1993) (reasoning that evidence that
bears upon a plaintiff's condition after his date last
insured is “pertinent evidence” which may
“disclose the severity and continuity of impairments
existing before the earning requirement date or may identify
additional impairments which could reasonably be presumed to
have been present and to have imposed limitations as of the
earning requirement date”). Even the Commissioner
explained that “[o]pinions issued after the date last
insured can be probative at times.” Doc. 34 at
6 (citing Hamlin, 365 F.3d 1217).
Ms. Burks' opinion was drafted well after the relevant
period for purposes of Plaintiff's disability benefits.
Nevertheless, the Court found that opinion to be at least
potentially relevant, noting that Ms. Burks treated Plaintiff
on at least two occasions during the relevant period and on
one occasion shortly thereafter. Doc. 29 at 14
(citing Administrative Record (“AR”) at 293). While
the Court concluded that the lateness of Ms. Sheffler's
opinion did not necessarily preclude its relevance to the
ALJ's disability determination, it described Ms.
Burks' opinion as more likely to be probative. Doc.
29 at 14. As such, the Court will focus its inquiry here
on the Commissioner's position with respect to Ms.
Burks' likely-more-probative opinion. If the Commissioner
is unable to show substantial justification with respect to
Ms. Burks' opinion, it becomes unnecessary to examine his
position as to Ms. Sheffler's opinion. For the finding of
no substantial justification on one issue on which remand was
required entitles Plaintiff to EAJA fees. See Urias v.
Berryhill, No. Civ. 16-1063 KBM, 2017 WL 4480834, at *3
(D.N.M. Oct. 5, 2017); see also Comm'r, INS v.
Jean, 496 U.S. 154, 161-62 (1990) (reasoning that
“EAJA . . . favors treating a case as an inclusive
whole, rather than as atomized line items”);
Hackett, 475 F.3d at 1173 n.1 (rejecting the notion
that EAJA fees can be denied because the government prevailed
on a majority of issues).
is tasked with evaluating every medical opinion of record and
explaining why any opinions were rejected. See Martinez
v. Astrue, 422 Fed.Appx. 719, 724-25 (10th Cir. 2011);
Wilson v. Colvin, 541 Fed.Appx. 869, 871 (10th Cir.
2013). Here, Ms. Burks opined that it would be
“difficult for [Plaintiff] to stand or sit for any
period of time” and that Plaintiff's
limitations would “make it difficult to do her
ADL's as well as any physical activity or to work.”
AR at 402 (emphasis added). In contrast, the ALJ's RFC
permitted light work with certain limitations, including the
requirement that Plaintiff be permitted to alternate between
sitting and standing every 10 minutes without leaving the
workstation. AR at 19. Clearly, the ALJ's RFC was at odds
with and less restrictive than Ms. Burks' opinion.
Ms. Burks treated Plaintiff for right knee pain within the
relevant period, her opinion, albeit written after
Plaintiff's date last insured, was relevant to
Plaintiff's limitations during the relevant time period.
See Hamlin, 365 F.3d at 1217. Notably, Ms.
Burks' treatment records show more than a passing
reference to problems with Plaintiff's right knee.
first saw Ms. Burks in November 2014, within the relevant
period, for severe pain in her right knee, which Plaintiff
rated as a “10.” AR at 298. She reported to Ms.
Burks that the right knee pain had been ongoing since 2009.
AR at 298-99. Plaintiff described knee pain when standing and
walking as well as occasions when her knee would “give
way.” AR at 299. Ms. Burks referenced an x-ray and MRI
of Plaintiff's right knee, which indicated moderate
osteoarthritis in all three compartments. AR at 299. She saw
Plaintiff again in December 2014, also within the relevant
period, when Plaintiff requested another injection in her
knee. AR at 297. At that time, Plaintiff reported that the
previous knee injection had not alleviated her pain and that,
earlier that month, her knee “locked out, ” with
several hours passing before she could resume bending her
knee. AR at 297. Ms. Burks found tenderness over
Plaintiff's medial joint line and posterior medial joint
line. AR at 297. She assessed “[r]ight knee pain with
probable meniscal injury” and referred Plaintiff for an
MRI. AR at 298. Finally, in February 2015, just after
Plaintiff's date last insured, Plaintiff reported to Ms.
Burks that her right knee was “locking.” AR at
292. According to Ms. Burks' treatment notes, an MRI
showed “moderate to advanced osteoarthritis with
asymmetric join space narrowing most pronounced in the
anterior lateral aspect of the joint.” AR at 292.
Additionally, there were “large osteophytes seen and
associated with cystic changes [and] several loose bodies
intraarticularly, largest ones adjacent to the tibial
spines.” AR at 292-93. There was “architectural
distortion involving the ACL and MCL and a diffuse surface
tear of the lateral meniscus anterior horn and body
junction.” AR at 293. The MRI showed “advanced
maceration, degeneration and tearing of the lateral meniscus,
” and, finally, the patellafemoral joint showed
“advanced denudation of the articular cartilage over
the crescent adjacent to the facets indicative of a grade IV
chondromalacia patella and small effusion and findings that
can be seen with synovitis as manifested by hypertrophy of
the synovium.” AR at 293. Ms. Burks assessed Plaintiff
with “[m]oderate to severe osteoarthritis of the right
knee.” AR at 293.
Court explained in its July 8, 2019 Memorandum Opinion and
Order, the record contains evidence that Plaintiff suffered
from ongoing right knee pain since 2009, and Ms. Burks'
opinion and treatment notes suggest that knee pathology was
present prior to Plaintiff's date last insured. Yet, the
ALJ failed to discuss any of Plaintiff's visits with Ms.
Burks, any of her findings during the relevant period, or any
of her opinions. In fact, he never mentioned Ms. Burks by
name. As the Court previously found, it was reversible error
for the ALJ not to at least explain why he dismissed Ms.
Burk's opinion. And reviewing the Commissioner's
litigation position anew, the Court finds that he lacks
substantial justification for the arguments advanced with
respect to Ms. Burk's opinion. The Court is not persuaded
by the Commissioner's attempt to justify the ALJ's
omissions based upon the “strength of the
record.” The ALJ effectively dismissed the opinions of
Ms. Burks and, critically, his opinion did not permit the
Court to follow his reasoning for doing so.
the Commissioner argues that because Ms. Burks included new,
postdate-last-insured impairments in her opinion, her opinion
should have been dismissed by the ALJ. But this justification
for the ALJ's rejection of Ms. Burks' opinions is
equally unreasonable. While the incorporation of
post-date-last-insured impairments may sometimes be an
adequate justification for an ALJ to discount a medical
opinion, here, the ALJ offered no such justification for his
rejection of Ms. Burks' opinion. The Court rejected this
post hoc justification by the Commissioner in its
July 8, 2019 Memorandum Opinion and Order, (Doc. 29
at 16), and it cannot now find these arguments substantially
the Court concludes that the agency's underlying action
was unreasonable and that the Commissioner has not met his
burden to show that the arguments advanced in justification
of it were substantially justified. ...