United States District Court, D. Colorado
VERONICA A. TREVIZO, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant
For Veronica A. Trevizo, Plaintiff: Michael W. Seckar, Michael W. Seckar, P.C., Pueblo, CO.
For Michael J. Astrue, Commissioner of Social Security, Defendant: Stephanie Lynn Fishkin Kiley, Social Security Administration-Denver, Office of the General Counsel, Region VIII, Denver, CO; William George Pharo, U.S. Attorney's Office-Denver, Denver, CO.
Honorable R. Brooke Jackson, United States District Judge.
This case is before the Court on plaintiff Veronica A. Trevizo's Application for an Award of Attorney's Fees Under the Equal Access to Justice Act, 28 U.S.C. § 2412 [ECF No. 21]. For the following reasons, the application is granted.
Ms. Trevizo applied for disability benefits in October of 2009, alleging disability due to Multiple Sclerosis (MS) and illiteracy. A hearing before administrative law judge Kathryn D. Burgchardt was held in November of 2010. The ALJ issued an opinion denying benefits on February 22, 2011. The Appeals Council denied Ms. Trevizo's request for review on July 21, 2011. Thereafter Ms. Trevizo filed a timely appeal with this Court. In its March 11, 2013 Order [ECF No. 17], the Court reversed the decision of the ALJ, finding that (1) there was not substantial evidence to support the ALJ's determination that Dr. Gamuac's opinion was not entitled to controlling weight, (2) there was not sufficient evidence in the record to support the ALJ's residual functional capacity (RFC) determination, (3) the ALJ improperly reduced the weight she gave to Dr. Vega's opinion, and (4) the ALJ did not explain the reasons for the weight given to Dr. Wanstrath's and Dr. Valette's opinions. Ms. Trevizo now asks for an award of attorney's fees and expenses under the Equal Access to Justice Act. The government objects to such an award, arguing that its position was substantially justified.
A. Award of Fees Under the EAJA.
The Equal Access to Justice Act (" EAJA") provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . 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). Thus, to prevail under the EAJA, a party must show that (1) it was the prevailing party, (2) the position of the United States was not substantially justified, and (3) there are no special circumstances that make an award unjust.
In a Social Security case, a plaintiff is the prevailing party when the district court remands to the Commissioner of Social Security under the fourth sentence of 42 U.S.C. § 405(g). Hackett v. Barnhart, 475 F.3d 1166, 1168 (10th Cir. 2007). In its earlier Order [ECF No. 17], this Court reversed the decision of the Commissioner to deny Ms. Trevizo benefits and remanded the case to the Commissioner for additional review. Thus, Ms. Trevizo was the prevailing party. The government has not argued that there are any special circumstances that make an award unjust. Therefore, this analysis focuses on the second prong: whether the government's position was substantially justified.
1. The Government's Position.
In litigation following an administrative proceeding, the government's position is both the position it took in the underlying administrative proceeding and in subsequent litigation defending that position. Hackett, 475 F.3d at 1174. EAJA fees " generally should be awarded where the government's underlying action was unreasonable even if the government advanced a reasonable litigation position." Id. (quoting United States v. Marolf, 277 F.3d 1156, 1159 (9th Cir. 2002)). In the present case, the Court finds that the government's underlying position ...