United States District Court, D. New Mexico
ORDER DENYING ATTORNEY FEES
GREGORY B. WORMUTH, UNITED STATES MAGISTRATE JUDGE.
MATTER comes before the Court on Plaintiff's Motion for
Attorney Fees Pursuant to Equal Access to Justice Act.
Doc. 27. On October 21, 2019, the Commissioner
responded in opposition to the motion. Doc. 28.
Plaintiff did not file a reply. Having reviewed the Motion
and Response, the Court will DENY the Motion.
October 5, 2018, Plaintiff filed suit in this court, seeking
reversal and remand of the decision by the Social Security
Administration (“SSA”) to deny Plaintiff Social
Security Disability Insurance benefits (“SSDI”)
and Supplemental Security Income (“SSI”).
Doc. 20. Plaintiff argued several points of error by
the ALJ in denying her application. In pertinent part,
Plaintiff argued that the ALJ failed to incorporate a
moderate limitation on Plaintiff's ability to interact
with the general public in the assessment of Plaintiff's
residual functional capacity (“RFC”), despite
substantial evidence to support the limitation. See
Id. at 17-18. In response to this point, the
Commissioner asserted that any error in failing to
incorporate the public-interaction limitation was harmless,
because many of the jobs relied on by the ALJ in concluding
that Plaintiff could still work did not require a significant
amount of public interaction. Doc. 22 at 18-21.
23, 2019, this Court granted remand. Doc. 25. The
Court found that the ALJ erred in failing to incorporate the
public-interaction limitation or to explain the reason for
omitting it. Id. at 7. More specifically, the ALJ
failed to pose hypotheticals to the vocational expert
(“VE”) regarding Plaintiff's limitation on
public interaction. Id. at 8. Because the VE's
testimony was incomplete, the conclusion that Plaintiff could
perform jobs that existed in significant numbers was not
supported by substantial evidence. Id.
Court also rejected the Commissioner's assertion of
harmless error, based on the precedent of Hargis v.
Sullivan, 945 F.2d 1482 (10th Cir. 1991). Doc.
25 at 8. In Hargis, the Tenth Circuit held
that, where a claimant suffers from mental impairments, the
SSA must rely on VE testimony to establish the existence of
jobs that the claimant can perform. 945 F.2d at 1492. Without
support from the VE's testimony, the Commissioner did not
carry his burden of proving that Plaintiff can perform work
existing in significant numbers in the national economy.
See doc. 25 at 8.
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, a plaintiff in a civil action against a
United States agency may be awarded the cost of reasonable
attorney fees if: (1) the plaintiff is the prevailing party;
(2) the position of the agency was not substantially
justified; and (3) there are no special circumstances that
would make the award unjust. Hackett v. Barnhart,
475 F.3d 1166, 1172 (10th Cir. 2007). The agency bears the
burden of showing that its position was substantially
justified” means “justified in substance or in
the main.” Pierce v. Underwood, 487 U.S. 552,
565 (1988). To be substantially justified, there must be a
“reasonable basis both in law and fact” for the
agency's position. Id.
requests attorney fees in the amount of $6, 934.50, for 34.5
hours billed at the rate of $201.00 per hour. Doc.
27 at 4. Plaintiff alleges that she is the prevailing
party, her net worth is less than $2, 000, 000.00, and the
SSA's position was not substantially justified.
Id. at 1. Plaintiff has supplied an affidavit from
her attorney detailing the hours expended on Plaintiff's
motion to remand. Doc. 27-1. Plaintiff asserts that
the requested fee is reasonable and within the range approved
by other courts. Doc. 27 at 3.
response, the Commissioner argues that the SSA's position
was substantially justified, therefore no attorney fees
should be awarded. Doc. 28 at 2. Although the ALJ
committed reversible error, the Commissioner argues that he
cured the ALJ's unreasonable conduct by taking a
reasonable litigation position that the ALJ's error was
harmless. Id. at 3. In the alternative, the
Commissioner requests that any fee awarded to Plaintiff be
reduced for unreasonableness to no more than $4, 848.00, or
24 hours billed at $202.00 per hour. Id. at 11.
the Court agrees with the Commissioner that his position in
litigating this case was substantially justified, the Court
does not reach the question of the reasonableness of
Plaintiff's requested fee award.