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Marin v. Colvin

United States District Court, D. Colorado

December 1, 2015

LISA F. MARIN, Plaintiff,


Kathleen M. Tafoya Magistrate Judge

The matter before the court is “Plaintiff’s Motion for Attorney Fees Under Equal Access to Justice Act (EAJA) 28 USC § 2412(d).” (See Doc. No. 24 [Motion], filed Oct. 12, 2015.) Defendant, the Acting Commissioner of Social Security (“the Commissioner”), filed her response brief on November 2, 2015 (Doc. No. 26 [EAJA Resp. Br.]), and Plaintiff filed her reply brief on November 4, 2015 (Doc. No. 27 [EAJA Reply Br.]).


Claimant applied for DIB and SSI in December of 2011, alleging that she had been disabled since October 2006 by a painful gastrointestinal condition called Diverticulosis. (Doc. No. 22 [Order] at 1, filed Aug. 24, 2015.) The Commissioner denied her DIB and SSI applications in March of 2012. (Id.) Following the denials, Claimant requested and received a hearing by an Administrative Law Judge (“ALJ”). (Id. at 1-2.) After the hearing, the ALJ determined that Claimant was not disabled within the meaning of section 1614(a)(3)(A) of the Act because she was still capable of performing some of her previous work. (Id. at 2.) The Appeals Council subsequently denied Claimant’s request for review, making the ALJ’s decision the final decision of the Commissioner for purposes of judicial review. (Id.) Claimant appealed the ALJ’s decision to this court. (Id.)

On appeal, Plaintiff alleged, among other things, that the Residual Functional Capacity (“RFC”) assessment[1] of the ALJ was legally insufficient because it omitted mental limitations the ALJ had acknowledged and accepted earlier in his written decision. (Doc. No. 15 [Opening Br.] at 21.) The Commissioner defended the ALJ’s actions by arguing that the ALJ considered the omitted mental limitations and “explained why he found no [mental] limitations in the residential functional capacity assessment.” (Doc. No. 16 [Resp. Br.] at 13.)

This court found that the ALJ’s failure to explain the absence of Plaintiff’s non-severe mental limitations from Plaintiff’s RFC constituted reversible error because it violated Tenth Circuit precedent and prevented the court from being able to determine whether the ALJ, as required by law, considered claimant’s mental impairments during his RFC assessment. (Order at 5-7.) The court reversed and remanded on that basis without reaching any of Plaintiff’s other arguments. (Id. at 7.)

After prevailing in its appeal, Plaintiff now seeks $6, 460.00 in attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). (Mot. at 1; Doc. No. 25 [EAJA Opening Br.], filed Oct. 12, 2015.) Plaintiff argues that she is entitled to these fees under EAJA because the ALJ’s decision and the Commissioner’s subsequent defense of that decision was not “substantially justified.” (EAJA Opening Br. at 4; EAJA Reply Br. at 5.) The Commissioner maintains that her actions and arguments were reasonable and, therefore, substantially justified. (EAJA Resp. Br. at 1.)


The EAJA awards attorney fees to a prevailing party in a Social Security Disability case when the United States took a position that was not “substantially justified.” See 28 U.S.C. § 2412(d)(1)(A). The government’s position is “substantially justified” when the government’s action and supporting arguments were “reasonable even if wrong.” Madron v. Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011) (emphasis author’s own). The test is simply “one of reasonableness” in law and fact. Id. (quoting Pierce v. Underwood, 487 U.S. 552, 563-65 (1988)). Though, generally, EAJA fees should be awarded when the government’s underlying action was unreasonable, it is possible for the government’s reasonable position during litigation to “cure” an earlier unreasonable government action. Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th Cir. 2007) (citations and quotations omitted). The government has the burden of establishing that its position was substantially justified. Id. at 1169 (citation and quotations omitted). If awarded, EAJA attorney fees must be reasonable. Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998).


In support of its Motion, Plaintiff argues that ALJ’s failure to follow “Tenth Circuit rulings and social security regulations” and the Commissioner’s subsequent defense of those failures was unreasonable. (EAJA Opening Br. at 8.) For the most part, Plaintiff relies on the court’s reasoning in the order reversing the ALJ’s decision, but emphasizes the court’s findings that the Farrill Court reversed on nearly identical facts. (See Id. at 2-4.) The Commissioner maintains that the ALJ considered Plaintiff’s non-severe mental impairments when constructing Plaintiff’s RFC. (See EAJA Resp. Br. at 3.) As support, the Commissioner refers to 1) the ALJ’s statement that he “considered all impairments, even those found to be non-severe . . .” and 2) the ALJ’s credibility assessment of Plaintiff, which contained the statement that Plaintiff “retained significant mental . . . capacity.”[2] (Id.)

There is no dispute that Plaintiff is the prevailing party. (See generally EAJA Opening Br.; EAJA Resp. Br.) The threshold question for the court then is whether the Commissioner’s position was reasonable, which is really two separate inquiries: A) whether the ALJ’s failures were reasonable, even if wrong, and B) whether the Commissioner’s defense of the ALJ’s failures was reasonable, even if wrong. See Hackett, 475 F.3d at 1174 (“reasonable even if wrong.”) (emphasis author’s own). If the court determines that, overall, the Commissioner has acted unreasonably, then court must decide whether the attorney fees requested by Plaintiff’s attorney are reasonable. Robinson, 160 F.3d at 1281.

A. The Reasonableness of the ALJ’s Failures

The court’s order reversing and remanding the ALJ’s decision cited Farrill as a nearly identical case where the Tenth Circuit reversed and remanded, in part, because, like here, that ALJ omitted Claimant’s mental impairments from that claimant’s RFC without explanation, despite acknowledging those very same impairments at an earlier stage of the ALJ’s disability analysis. (See Order at 6-7.) Farrill was decided in 2012. The ALJ decision in this case was rendered June 7, 2013 (Doc. No. 12 [AR] at 33), and the appeal before this court was filed May 13, 2014 (Doc. No. 1). Neither the ALJ nor the Commissioner cited any precedent that calls Farrill’s holding into question. (See ...

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