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Golisch v. Colvin

United States District Court, D. Kansas

March 10, 2017

MARY GOLISCH, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff Mary Golisch’s Motion for Attorney Fees (Doc. 15) pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. The Commissioner opposes the motion, arguing that the Commissioner’s position in this litigation was substantially justified and the fee amount Plaintiff seeks is unreasonable. Because the Court concludes a fee award is warranted under the EAJA, the Court grants Plaintiff’s motion.

         I. Factual and Procedural Background

         On October 8, 2012, Plaintiff filed a Title II application seeking disability benefits as of March 30, 2012. Plaintiff alleged an inability to work due to fibromyalgia, restless leg syndrome, migraine headaches, and pancreatitis. Her application was denied initially and upon reconsideration. Plaintiff then requested a hearing before an Adminstrative Law Judge (“ALJ”), which was held on April 24, 2014. Although the ALJ found that Plaintiff suffered from various severe impairments, the ALJ denied Plaintiff’s application on June 24, 2014. Plaintiff appealed the ALJ’s decision to the Appeals Council. As part of her appeal, she submitted additional medical evidence regarding her conditions. The Appeals Council considered this evidence and found that it did not provide a basis for changing the ALJ’s decision. The Appeals Council denied Plaintiff’s appeal on July 30, 2015, making the ALJ’s decision the final decision of the Commissioner.

         Plaintiff filed a Complaint in this Court on September 10, 2015. In her brief to the Court, Plaintiff raised several issues regarding the evidence she submitted to the Appeals Council and the ALJ’s decision. Only one issue, however, required remand. Plaintiff argued that the new evidence she submitted to the Appeals Council showed the existence of an additional severe mental impairment that was not considered by the ALJ. The Commissioner disputed this, arguing that Plaintiff’s new evidence did not undermine the ALJ’s finding that Plaintiff did not have a severe mental impairment and that the ALJ’s residual functional capacity (“RFC”) analysis was supported by substantial evidence in the record. While the Court did not unequivocally accept Plaintiff’s argument, it did conclude that the new evidence showed the existence of an additional mental impairment-a mild cognitive impairment-and that it was not clear from the Appeals Council’s decision whether this impairment was considered when affirming the ALJ’s RFC assessment. Thus, the Court reversed the ALJ’s decision and remanded for the ALJ to consider all of Plaintiff’s medically determinable impairments, Plaintiff’s severe impairments or severe combination of impairments, and the limitations that result from these impairments.

         According to the record, Plaintiff’s claim is currently pending before the Commissioner pursuant to the Court’s remand. Plaintiff now moves the Court for an award of attorney fees and her filing fee under the EAJA. Plaintiff asks the Court to award her $5,437.74 in attorney fees for the 29.5 hours her counsel worked researching and brief writing while advocating Plaintiff’s case and $400 in filing fees. The Commissioner opposes the motion, arguing that she is not entitled to fees under the EAJA. Plaintiff’s motion is ripe for the Court’s review.

         II. Legal Standard

         The EAJA provides for an award of attorney fees to a prevailing party in a suit against the United States unless the court finds that United States’ position was substantially justified or that special circumstances make an award unjust.[1] Under the EAJA, a prevailing party is a plaintiff who has obtained a remand under sentence four of 42 U.S.C. § 405(g).[2] That sentence allows the district court to remand the case in conjunction with a judgment reversing, modifying, or affirming the Commissioner’s decision.[3]

         The Commissioner bears the burden to show that her position was substantially justified.[4]To do this, the Commissioner must show that the government’s position was “justified to a degree that could satisfy a reasonable person.”[5] In other words, the Commissioner must show that her position had a reasonable basis in law and fact.[6] “The government’s ‘position can be [substantially] justified even though it is not correct.’ ”[7]

         The EAJA defines the government’s position to include both the position taken by the Commissioner in the civil action (the government’s “litigation position”) and the agency’s failure to act in the underlying proceeding in which the litigation is based (the government’s “prelitigation position”).[8] The general rule is that EAJA fees “should be awarded where the government’s underlying action was unreasonable even if the government advanced a reasonable litigation position.”[9] The Court looks to the record in the civil proceeding, as well as the agency record, to determine whether the government’s position was substantially justified.[10]

         III. Analysis

         Plaintiff is a prevailing party under the EAJA.[11] Therefore, the only issues remaining are whether the Commissioner’s position was substantially justified and whether the amount of attorney fees requested is reasonable. The Court will address each of these issues below.

         A. The Commissioner’s Prelitigation Position is Not Substantially Justified.

         The Court remanded the case because it found that the new evidence submitted to the Appeals Council showed the existence of a mild cognitive impairment and it was not clear from the Appeals Council’s decision whether it considered this impairment in reviewing the ALJ’s RFC assessment. The Appeals Council’s actions or failure to act are part of the government’s prelitigation position.[12] The Court must therefore determine whether the Appeals Council was substantially justified in upholding the ALJ’s RFC assessment.

         The Commissioner argues that the Appeals Council’s decision was substantially justified because the Appeals Council stated that it considered the new evidence submitted by Plaintiff and such information did not provide a basis for changing the ALJ’s decision. This argument, however, fails to show that the Appeals Council’s decision has a reasonable basis in fact and law. The new evidence Plaintiff submitted to the Appeals Council showed the existence of an additional mental impairment-a mild cognitive impairment. Under the regulations, all mental impairments, whether they are classified as severe or not, must be considered by the ALJ in formulating the RFC.[13] Furthermore, both this Court and the Tenth Circuit have remanded cases where the Appeals Council’s decision does not adequately show that it properly evaluated new evidence.[14] Here, the Appeals Council’s only statement regarding the new evidence was that it “does not provide a basis for changing the Administrative Law Judge’s decision.” This single statement is not sufficient to show that the new impairment was properly considered when evaluating Plaintiff’s RFC. Therefore, the Commissioner has not met her burden to show that her prelitigation position was substantially justified, and Plaintiff is entitled to attorney fees under the EAJA.[15]

         B. Plaintiff’s Requested Fee Amount Is Reasonable.

         Plaintiff, as the fee applicant, bears the burden of showing that the requested fee is reasonable.[16] District courts have “substantial discretion in fixing the amount of an EAJA award.”[17] “Exorbitant, unfounded, or procedurally defective fee applications” may be discounted by the court.[18] In this case, Plaintiff seeks an award of $5,437.74 in attorney fees. This ...


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