United States District Court, D. Kansas
MEMORANDUM AND ORDER
W. BROOMES UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff's motion for an
award of attorney fees and costs in the amount of $10,
173.75, under the Equal Access to Justice Act
(“EAJA”). (Docs. 23-1, 25.) The Commissioner of
Social Security (“the Commissioner”) contests the
award of fees, claiming that his position was substantially
justified. (Doc. 24.) Further, the Commissioner contests that
the number of billable hours claimed by Plaintiff's
attorneys is unreasonable. For the reasons provided herein,
Plaintiff's motion is GRANTED.
EAJA . . . requires that a court award a fee to a prevailing
plaintiff unless the court finds that the position of the
United States was substantially justified.” Sieber
v. Berryhill, No. 17-2630-JWL, 2018 WL 3389888, at *2
(D. Kan. July 12, 2018) (citing Gilbert v. Shalala,
45 F.3d 1391, 1394 (10th Cir. 1995)). Substantial
justification is met when “the government's
position [is] ‘justified to a degree that could satisfy
a reasonable person.'” Hackett v.
Barnhart, 475 F.3d 1166, 1174 (10th Cir. 2007) (quoting
Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
Generally, unreasonable action by the agency in the
underlying action should result in an award of attorney fees
under the EAJA. Evans v. Colvin, 640 Fed.Appx. 731,
733 (10th Cir. 2016) (quoting Hackett, 45 F.3d at
1174). However, the Tenth Circuit allows for unreasonable
actions by the agency in the underlying action to be cured by
a reasonable litigation position. Id. This exception
can include a reasonable but unsuccessful claim of harmless
error by the agency. Evans, 640 Fed.Appx. at 733
(quoting Groberg v. Astrue, 505 Fed.Appx. 763,
765-66 (10th Cir. 2012)). The government bears the burden to
establish substantial justification. Hackett, 475
F.3d at 1169.
support of his substantial justification argument, the
Commissioner relies on the Tenth Circuit's decision in
Evans. (Doc. 24 at 3-4.) Evans explains how
to evaluate whether the government's position was
substantially justified in a case where the government argued
that the error by the Administrative Law Judge
(“ALJ”) was harmless. Evans, 640
Fed.Appx. at 735. In Evans, the ALJ determined that
the claimant could perform the job of silverware wrapper.
Id. at 734. The claimant, however, could not perform
that position due to the claimant's RFC. Id. The
Commissioner's litigating position, which was ultimately
unsuccessful, was that the error was harmless because even
after the silverware wrapper jobs were removed, a significant
number of jobs (18, 831) were still available. Id.
at 735. The Evans court had to distinguish between
two precedents in its evaluation. Id. at 736. The
first was a case where similar circumstances led to a
successful harmless error argument based on 152, 000 jobs
remaining after the erroneously considered job was omitted.
Stokes v. Colvin, 564 Fed.Appx. 935, 940-41 (10th
Cir. 2014). The second was an unsuccessful claim where the
harmless error argument was based on 100 jobs remaining.
Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.
2004). The court of appeals determined that because of this
precedent, there was uncertainty surrounding the
government's harmless error claim given the number of
jobs remaining in Evans. Evans, 640
Fed.Appx. at 736- 37. Although the court of appeals
ultimately determined that the ALJ's error was not
harmless, the uncertainty surrounding the Commissioner's
position resulted in a determination that it was
substantially justified. Id.
uncertainty exists in the present case. The Commissioner
argued that failure to consider Plaintiff's fibromyalgia
diagnosis in the underlying action was harmless error because
the ALJ considered the “clinical findings and
limitations associated with the . . . impairment when
formulating the RFC.” (Doc. 16 at 5.) However,
“the court [could] not say that the undiscussed
evidence and diagnoses pertaining to fibromyalgia could not
possibly have affected the ALJ's conclusions about the
severity of the Plaintiff's symptoms . . . .” (Doc.
20 at 9 (noting that the ALJ failed to consider several
diagnoses of fibromyalgia rendered by Plaintiff's
physicians in spite of the Commissioner's directives to
the contrary in Social Security Ruling SSR12-2P).) If a
dispositive finding is not considered, the court can only
support harmless error claims under exceptional
circumstances. Allen, 357 F.3d at 1145. “To
reach that conclusion here would require ‘mere
speculation regarding the ALJ's analysis.'”
(Doc. 20 at 9 (quoting Elliot v. Astrue, 507
F.Supp.2d 1188, 1195 (D. Kan. 2007))). Given that the
underlying actions by the agency were unreasonable and that
the harmless error argument provided in the subsequent
litigation did not cure the unreasonable action, the
Commissioner cannot be deemed substantially justified in his
position. “When the government's legal position
clearly offends established precedent . . . its position
cannot be said to be ‘substantially
justified.'” Quintero v. Colvin, 642
Fed.Appx. 793, 796 (10th Cir. 2016) (quoting Washington
v. Heckler, 756 F.2d 959, 962 (3d Cir. 1985)).
Therefore, the EAJA provides that fees must be awarded on the
current motion. See 28 U.S.C. § 2412(d)(1).
Commissioner further contends that the hours billed by
Plaintiff's attorneys is unreasonable. (Doc. 24.) Courts
have a duty to review the reasonableness of attorneys'
fees to avoid the public bearing the burden of payment of
unreasonable attorneys' fees. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). Reasonableness in
the context of hours billed requires consideration of whether
the hours were necessary under the circumstances.
Robinson v. City of Edmond, 160 F.3d 1275, 1281
(10th Cir. 1998). “The party seeking attorney fees
bears the burden of proving that its request is reasonable
and must ‘submit evidence supporting the hours
worked.'” Sieber, 2018 WL 3389888 at *2
(quoting Hensley, 461 U.S. at 433-34).
contends the size of the record in this case relative to
other cases decided in the Tenth Circuit supports greater
than the 30 to 40 hours typical for straightforward
disability cases. Myer v. Barnhart, No. 04-4077-JAR,
2005 WL 3084898, at *1 (D. Kan. Nov. 3, 2005). “[T]he
number of alleged disabilities, and the extent of the record
directly affect the scope of the judicial review and
certainly the length of the claimant's brief.”
Id. at *2. In Myer, a record of 197 pages
supported a claim for 48.30 hours because of the extensive
look into the facts required given the amount of evidence not
considered by the ALJ in that case. The extensive cataloguing
and detail needed in the statement of facts for
Myers makes it an exceptional case, however.
Id. This Court finds two other cases to be more
instructive. First, Williams v. Astrue is a case
where the record contained 693 pages. Williams v.
Astrue, No. 06-4027-SAC, 2007 WL 2582177, at *1 (D. Kan.
Aug. 28, 2007). While the record and the excessive briefing
that followed did not support the 59.40 hours billed by the
claimant's attorneys in Williams, the court did
find 37 hours to be reasonable under the circumstances.
Id. at *2. Second, Martinez v. Colvin is a
case where the record contained 624 pages. Martinez v.
Colvin, No. 1:15-cv-806 LF, 2016 WL 9774938, at *2 (D.
Kan. Nov. 30, 2016). The court indicated this was an average
length record and would not allow greater than the typical 30
to 40 hours billed as a result. Id. The court
determined 40 hours to be reasonable in Martinez.
Id. at *3. The present case involves a record over
1, 300 pages long. (Doc. 25-1.) Due to the length of the
record almost doubling the records in Williams and
Martinez, the extra time taken in reviewing the
record and briefing is reasonable under the circumstances.
The 43.9 hours of attorney time (plus 3.5 hours spent on the
reply) and 9.9 hours of clerk time are not excessive relative
to the typical 40 hours allowed considering the record is
more than twice the size of an average record in similar
types of cases.
Commissioner argues that Sieber v. Berryhill is
instructive to the present case. (Doc. 24.) However, in
Sieber, the court reduced the hours billed because
they included hours necessary to train a new attorney working
on the case. Sieber, 2018 WL 3389888 at *2. No such
training time was included in the hours billed for the
present case. (Doc. 23-3.)
Commissioner also argues the time spent reviewing the record
by local counsel should be excluded as duplicative work.
(Doc. 24.) Time spent by the local counsel reviewing the
record is not duplicative because such review is a
requirement under Local Rule 5.4.2 and, in any event, only
amounted to 1.2 hours.
Commissioner's position concerning the failure to
consider Plaintiff's fibromyalgia diagnosis in the
underlying action was not substantially justified. The hours
billed in the present case are reasonable. Plaintiff's
motion for an award of attorney fees and costs in the amount
of $10, 173.75 is GRANTED. (Doc. 23.) The award shall be made
payable to attorney Frederick J. Daley, Jr. as principal
attorney of the firm representing the