United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter is before the court on plaintiff's motion for
attorney fees under the Equal Access to Justice Act, 28
U.S.C. § 2412 (EAJA). Dkt. 19. The Commissioner opposes
the motion, arguing that her position in the litigation was
substantially justified. Dkt. 21. For the following reasons,
the motion is granted.
plaintiff's applications for disability insurance
benefits and supplemental security income were denied by the
Social Security Administration, she requested and received an
evidentiary hearing before an Administrative Law Judge (ALJ).
The ALJ found that plaintiff was not disabled within the
meaning of the Social Security Act because, despite her
impairments, she was capable of performing her past work as
an office manager. Plaintiff appealed, and this court agreed
with plaintiff's argument that the ALJ erred in two
respects. First, in assessing the severity of plaintiff's
mental impairment, the ALJ did not apply the analysis
required by § 414.1520a. Among other things, that
regulation requires the ALJ to apply a special technique and
to include specific findings as to the degree of limitation
in each of several functional areas, and the ALJ must
consider those limitations when formulating the Residual
Functional Capacity (RFC). There was no indication the ALJ
did so in this case. Second, under the regulations, past work
is considered relevant only if it lasted long enough for the
plaintiff to learn to do it. Plaintiff's prior job as an
officer manager required more than two years to learn,
according to the Dictionary of Occupational Titles, but the
record showed plaintiff only performed the job for two years.
Accordingly, the court found the ALJ erred in relying on
plaintiff's asserted ability to perform the job of office
EAJA requires a court to award fees and other expenses to a
prevailing party in a suit against an agency of the United
States “unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A); see also Goatcher v. Chater, 57 F.3d
980, 981 (10th Cir. 1995). A plaintiff who obtains a sentence
four remand under 42 U.S.C. § 405(g) is a prevailing
party for EAJA purposes. Shalala v. Schaefer, 509
U.S. 292, 301-02 (1993).
Commissioner bears the burden to show that her position was
substantially justified. Gilbert v. Shalala, 45 F.3d
1391, 1394 (10th Cir. 1995). “A position can be
justified even though it is not correct, and ... can be
substantially (i.e., for the most part) justified if a
reasonable person could think it correct, that is, if it has
a reasonable basis in law and fact.” Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988). See also
Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir.
2007) (substantially justified means the Commissioner's
position was reasonable in law and in fact and can be
justified to a degree that could satisfy a reasonable
determining whether the Commissioner's position was
substantially justified, the court focuses on the issue(s)
that led to remand-not the issue of disability.”
Brooks v. Barnhart, 2006 U.S. Dist. LEXIS 95143, at
*2, 2006 WL 3027975 (D. Kan. Sept. 25, 2006) (internal
citations omitted). It remains the burden of the party
seeking the award to show that both the hourly rate and the
number of hours expended is reasonable under the
circumstances. Hensley v. Eckerhart, 461 U.S. 424,
433-34 (1983); see also Brooks, 2006 U.S. Dist.
LEXIS 95143, at *5, 2006 WL 3027975; MacDonald v.
Colvin, No. 2:14-CV-02446-JTM, 2016 WL 55270, at *2 (D.
Kan. Jan. 5, 2016).
review of the Commissioner's response brief shows that in
opposing remand, the Commissioner asserted there was
substantial evidence to support the ALJ's findings that
plaintiff's mental impairment was not severe and that it
imposed no functional limitation. Dkt. 3 at 5-6. As for
plaintiff's past work as an office manager, the
Commissioner argued plaintiff failed to show that she
required more than two years to learn the job, so the ALJ did
not err by relying upon plaintiff's ability to perform
that job to find that she was not disabled. Id. at
8. The Commissioner also argued that the vocational
expert's testimony showed that plaintiff could perform
her past relevant work. Id. at 9.
court finds the Commissioner's position in this
litigation was not substantially justified. With respect to
the first procedural error requiring remand-i.e., the
ALJ's failure to analyze plaintiff's mental
impairment as required by § 414.1520a- the
Commissioner's response brief failed to address the
applicable regulation, whether the ALJ complied with it, and
the effect of failing to comply with it. As for the second
procedural error-the ALJ's reliance on plaintiff's
past work as an office manager-the Commissioner's brief
acknowledged that the DOT states that the job takes more
than two years to learn, but that plaintiff only worked
in the position for two years. The brief did not explain why
this discrepancy would be insufficient to meet
plaintiff's burden of proof. Moreover, the Commissioner
cited a vocational expert's testimony (Dkt. 13 at 9) in
support of the contention that plaintiff could perform the
office manager job, but the portion cited appears to address
a hypothetical for a person capable of performing light work,
not a person like the plaintiff, who was (according to the
ALJ) capable of sedentary work. Dkt. 9-1 at 100-01 (Tr. at
95-96)). Additionally, the portion of the transcript
addressing the ability of a person capable of sedentary work
to do the office manager job is unintelligible and fails to
support the Commissioner's assertion. See Dkt.
17 at 10.
Commissioner's arguments on the points requiring remand
did not cite a reasonable basis in law and fact for affirming
the ALJ's decision. The Commissioner's litigating
position was not substantially justified within the meaning
of the EAJA. The court concludes that an award of attorney
fees is appropriate under 28 U.S.C. § 2412(d)(1)(A).
seeks an award of attorney fees in the amount of $5, 000 and
court costs of $400. Dkt. 19. The award is supported by
itemized time records reflecting a total of 2.8 hours
expended in 2016 and 24.4 hours in 2017, billed at a rate
that complies with 28 U.S.C. § 2412(d)(2)(A). The total
amount of $5, 000 reflects a voluntary reduction of $322.52.
Dkt. 19 at 4. The Commissioner has not objected to
plaintiff's calculation of fees. The court finds that the
hours submitted are reasonable and were reasonably necessary
to accomplish the result, and further finds that the
requested hourly rate is reasonable.
Commissioner points out, the award of attorney fees must be
made payable to the plaintiff Mary Louise Brooks as the
prevailing party. ...