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Ortivez v. Colvin

United States District Court, D. Colorado

July 22, 2015

SHELLY LYNN ORTIVEZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

KRISTEN L. MIX MAGISTRATE JUDGE

This matter is before the Court[1] on Plaintiff’s Motion for Award of Attorneys’ Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. §2412 [#27][2], (the “Motion”). Defendant filed a Response [#28] and Plaintiff filed a Reply [#29] in further support of the Motion. The Court has reviewed the Motion, Response, Reply, the entire case file, and the applicable law and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#27] is GRANTED.

I. Factual and Procedural Background

Plaintiff alleges that she became disabled on July 13, 2005 due to mental health issues. Tr. 98, 27-28.[3] On May 23, 2012, Plaintiff filed for Title XVI supplemental security income. Tr. 98-105. On May 10, 2013, a hearing was held before Administrative Law Judge William Musseman (the “ALJ”). Tr. 24-32. On June 11, 2013, the ALJ entered his Decision, finding that Plaintiff was “not disabled under section 1614(a)(3)(A) of the Social Security Act.” Tr. 20. Plaintiff appealed to the Appeals Council, which denied her request for review of the ALJ’s decision. Tr. 1-9. Therefore, the ALJ’s decision became a final decision of the Commissioner for purposes of judicial review. 20 C.F.R. §§ 416.1481. Plaintiff subsequently filed this lawsuit challenging the ALJ’s decision. On November 23, 2014, the undersigned entered an Order reversing the ALJ’s decision and remanding this case for further proceedings. Order [#23] at 17. Specifically, with regard to the weight to be given to certain doctors’ opinions, the Court found that “the ALJ properly considered consistency when he explained his reasons for not giving greater weight to the opinions of Dr. Madsen and Dr. Rodriguez. Tr. 17-18.” Id. at 14. However, “[w]hile the ALJ properly noted the consistency issue, he did not identify any portions of each of the experts' opinions he found to be inconsistent with the treatment records. Instead, he provided a detailed summary of the treatment records that supported his RFC.” Id. The Court found this to be error:

Here, the ALJ provided a thorough review of the portions of Plaintiff's treatment records that he considered, but he did not specifically link those records to the three opinions. The Court finds this to be error. Without the necessary findings, the Court must remand because proper review is not possible. Watkins, 350 F.3d at 1300 ("We must remand because we cannot properly review the ALJ's decision without these necessary findings.").

Id. at 16. The Court then explained why remand was necessary:

The Court notes that the ALJ rejected Dr. Sexton's finding that Plaintiff "requires no frequent or prolonged contact with co-workers, " explaining that "claimant’s difficulty thinking is accounted for by limiting her to work with an SVP of 2 or less and involving only simpl[e], rote and repetitive tasks." Tr. 19. However, this explanation of the ALJ's reason for not including this limitation in the RFC does not provide the Court any information to support his decision to afford the opinions of Dr. Madsen and Dr. Rodriguez less weight.
The Court cannot conclude that the ALJ's error was harmless. See Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir.2004) (concluding that, with certain "caveats, it . . . may be appropriate [in Social Security appeals] to supply a missing dispositive finding under the rubric of harmless error in the right exceptional circumstance, i.e., where, based on material the ALJ did at least consider (just not properly), we could confidently say that no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way"). While the ALJ provided a thorough summary of Plaintiff's treatment records from Spanish Peaks, he did not link any part of that summary to the medical opinions.

Id. The Court entered Final Judgment in favor of Plaintiff on November 17, 2014. Final Judgment [#24] at 1.

In the instant Motion, Plaintiff seeks $5, 913.51 in attorneys’ fees pursuant to 28 U.S.C. § 2412, the Equal Access to Justice Act (“EAJA”). Motion [#27] at 1. In support of her Motion, Plaintiff argues that: (1) she is the prevailing party in this action; (2) her net worth did not exceed $2, 000, 000 at the time the action was filed; (3) there are no special circumstances in this case; and (4) Defendant’s position was not substantially justified. Id. at 2. Plaintiff’s attorney submitted an affidavit, [#27] at 5-9, in support of the specific amount requested.

In her Response, Defendant argues that her position was substantially justified. See generally Response [#28]. Specifically, Defendant notes that pursuant to the EAJA, “[t]je substantial justification test is simply one of reasonableness in law and fact.” Response [#28] at 2 (citations omitted). This is different from the substantial evidence standard under the Social Security Act. Id. Defendant maintains that its position in the case was substantially justified. Id. at 3-5. She notes that “the Court found the ALJ erred because-even though he ‘provided a thorough review of the portions of Plaintiff’s treatment records that he considered’-‘he did not specifically link those records to the three opinions’ (Order at 15-16).” Id. at 4. Defendant argues that “although the Court was not ultimately persuaded by the Commissioner’s position regarding the medical source opinions, ” her position was “reasonable in fact and law.” Id. She provides case law to support her position that “reasonable minds can differ” with regard to the ALJ’s analysis and therefore argues that her position was substantially justified. Id. at 5.

In her Reply, Plaintiff argues that Defendant’s position was not substantially justified because the ALJ failed to explain the inconsistencies in the medical records and the doctors’ opinions. Reply [#29] at 5. Plaintiff distinguishes the cases cited by Defendant by arguing that while an “ALJ can give greater weight to an opinion that is consistent with the record, and less weight to one that is not consistent, ” this principle “misses the point of” this specific case. Id. at 4. Plaintiff avers that this “does nothing to establish the reasonableness of the ALJ’s failure to explain what the specific inconsistencies were.” Id. at 5. Plaintiff further argues that Defendant fails to meet her burden to show that her action and the actions of the ALJ were reasonable because she “did not offer any reason why the ALJ’s failure to link the treatment records to any specific inconsistencies in the medical opinion should be excused as being reasonable or justified.” Id. at 6 (emphasis omitted). Plaintiff also provides information about fees incurred in filing the Reply. Id. at 8-9. As a result, she seeks attorney’s fees totaling $6, 669.23 in this case. Id. at 9.

II. Standard

Under the EAJA, a party who prevails against the United States in court, including a successful Social Security benefits claimant, may be awarded fees if the position of the United States was not “substantially justified” and there are no special circumstances that make an award of fees unjust. 28 U.S.C. § 2412(d)(1)(A); Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). As ample case law indicates, where, as here, a Social Security disability claimant obtains a remand to the Commissioner under 42 U.S.C. § 405(g), he is a prevailing party for purposes of the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). Further, the Commissioner does not assert any ...


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