Barrett v. Commissioner of Social Security Administration, No. 5:2017cv00101 - Document 29 (W.D. Okla. 2018)
Court Description: ORDER granting 24 Motion for Attorney Fees and 28 Motion for Attorney Fees and awarding attorney's fees under the EAJA in the amount of $6954.10. Signed by Honorable Charles Goodwin on 10/19/2018. (jb)
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he ALJ’s errors could not be said to be harmless, as adoption of the limitations presented in the misattributed opinion would erode the base of work that Plaintiff could perform, and there was “no record evidence of what jobs Plaintiff would remain capable of performing” if those limitations were imposed. Id. at *5. The Court found that reversal was required based upon the ALJ’s failure to properly evaluate the treating-physician opinion in accordance with the relevant regulatory factors. See id. The Court declined to address other propositions of error raised by Plaintiff. See id. (citing Watkins, 350 F.3d at 1299). Defendant objects to any award of fees, arguing that the government’s position was substantially justified with respect to the denial of Plaintiff’s application for benefits. See Def.’s Obj. at 4-10; see also Gutierrez v. Sullivan, 953 F.2d 579, 585 (10th Cir. 1992) (“We 3 consider the reasonableness of the position the Secretary took both in the administrative proceedings and in the civil action Plaintiff commenced to obtain benefits.”). The ALJ’s assessment of the evidence reflected legal error, however, and resulted in an assessment that did not comport with Tenth Circuit authority in multiple respects. See Barrett, 2018 WL 3414321, at *2-5. Defendant now primarily repeats the arguments previously made in support of affirmance and does not show “a reasonable basis in law and in fact” for the ALJ’s denial of benefits. Hadden, 851 F.2d at 1267; see Def.’s Obj. at 4-10; see also Gutierrez, 953 F.2d at 584-86 (finding that district court abused its discretion in denying fees to plaintiff where the ALJ’s findings were unreasonable based on the record before the ALJ). The Court also considers “whether this case is exceptional because the Commissioner’s litigation position ‘cured unreasonable agency action.’” Groberg v. Astrue, 505 F. App’x 763, 768 (10th Cir. 2012) (alteration omitted) (quoting Hackett, 475 F.3d at 1174); see Vincent v. Berryhill, 247 F. Supp. 3d 1228, 1232 (W.D. Okla. 2017). Defendant correctly notes that the Commissioner may avoid paying EAJA fees under this exception “when [she] reasonably, even if unsuccessfully, argues in litigation that the ALJ’s errors were harmless.” Def.’s Obj. at 9 (citing Evans v. Colvin, 640 F. App’x 731, 733 (10th Cir. 2016)). But the Commissioner did not argue that the ALJ committed harmless legal error with respect to the material issue. See Def.’s Br. (Doc. No. 15) at 810, 12-13. Rather, she argued that the ALJ’s decision complied with the governing law and that the ALJ’s evaluation of the treating-physician opinion was supported by substantial evidence. See id. 4 Defendant thus has not shown that the United States’ position before the SSA and this Court was substantially justified. See 28 U.S.C. § 2412(d)(1)(A), (d)(1)(B), (d)(2)(D). Whether Plaintiff’s Fee Request Is Reasonable IV. The Court is aware of no special circumstances that would make an award of attorney’s fees unjust. See id. § 2412(d)(1)(A). Thus, the only remaining issue is the reasonableness of Plaintiff’s fee request. See id. § 2412(d)(1)(A), (d)(1)(B), (d)(2)(A). Plaintiff seeks an attorney’s fee award of $6954.10, calculated as follows: • 28.10 attorney hours for work performed in 2017, at a rate of $197.00 per hour; and • 10.2 attorney hours for work performed in 2018, at a rate of $197.00 per hour; • with the requested award reduced by $591.00 in the exercise of billing judgment. See Pl.’s Mot. Att’y Fees at 2, 8-10; Pl.’s Suppl. Mot. Att’y Fees at 2, 4-6. Plaintiff’s attorney has provided a detailed statement of the time expended, and the Court finds that this uncontroverted statement reflects a reasonable amount of time spent on this matter. See id.1 An attorney’s fee award under the EAJA is limited to $125.00 per hour unless the court determines that an increase in the cost of living or special factor justifies a higher fee. See 28 U.S.C. § 2412(d)(A). Plaintiff has requested an upward adjustment of this statutory rate, and Defendant does not challenge the hourly fee requested by Plaintiff. The Court 1 The inclusion in the fee award of time spent seeking this fee award (to which Defendant has offered no objection) is appropriate under Commissioner, Immigration & Naturalization Service v. Jean, 496 U.S. 154 (1990). See Pl.’s Suppl. Mot. Att’y Fees at 2, 4-6; Vincent, 247 F. Supp. 3d at 1229-30; Hull v. Berryhill, No. CIV-15-954-R, 2017 WL 2023765, at *2 (W.D. Okla. May 12, 2017). 5 takes judicial notice of the fact that SSA’s Office of General Counsel (“OGC”) in Denver has agreed as a matter of policy that $197.00 is a reasonable hourly rate for work performed in 2017 and 2018 on Social Security cases in the Western District of Oklahoma. See Pl.’s Mot. Att’y Fees at 9 (Mem. from Denver OGC Office to Pls.’ Att’ys Handling Soc. Sec. Litig. in Okla. & N.M. (Feb. 9, 2018)). Plaintiff therefore is entitled to an upward adjustment of the statutory rate consistent with the evidence provided. CONCLUSION Having considered the parties’ arguments as well as the relevant record, the Court concludes that: (1) Plaintiff is a prevailing party; (2) the government’s position was not substantially justified; (3) there are no special circumstances that make an award of fees unjust in this case; and (4) the amount of the fee requested is reasonable. The Court therefore GRANTS Plaintiff’s Motions (Doc. Nos. 24, 28) and awards attorney’s fees under the EAJA in the amount of $6954.10, with said amount to be paid directly to Plaintiff and sent in care of Timothy White, AAA Disability Advocates PC, 7906 East 55th Street, Tulsa, Oklahoma, 74145-7818. If attorney’s fees are also awarded under 42 U.S.C. § 406(b), Plaintiff’s counsel shall refund the smaller award to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986). IT IS SO ORDERED this 19th day of October, 2018. 6
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