Peplinski v. Saul

454 F.Supp.3d 1119

Mary Lou PEPLINSKI, Plaintiff,

v.Andrew M. SAUL,¹ Commissioner of Social Security, Defendant.

CIVIL ACTION No. 18-1344-JWL

United States District Court, D. Kansas.

Signed April 16, 2020

Jennifer L. Fisher, Marysville, KS, for Plaintiff.

Brian D. Sheern, Office of United States Attorney, Wichita, KS, for Defendant.

MEMORANDUM AND ORDER

John W. Lungstrum, United States District Judge

This matter is before the court on Plaintiff's Motion for Attorney Fees pursuant to The Equal Access to Justice Act. (EAJA) ( 28 U.S.C. § 2412 ) (Doc. 19). The Commissioner argues that no fee is warranted because the Commissioner's position was substantially justified and that even if the court should find the position was not substantially justified, the time spent by Plaintiff's counsel was unreasonable in the circumstances. (Doc. 20) (hereinafter EAJA Response). The court agrees with the first proposition, that the government's position was substantially justified, does not need to address the second proposition, and DENIES Plaintiff's request for fees pursuant to the EAJA.

I. Background

Plaintiff sought review of the ALJ's decision denying benefits. (Doc. 1). The Commissioner answered and filed the transcript with the court. (Docs. 8, 9). Plaintiff filed a Social Security Brief (Doc. 14) (Pl. Brief) arguing extensively that the ALJ erroneously evaluated her degenerative disc disease pursuant to Listing 1.04, erroneously evaluated her symptoms and functional limitations, failed to consider all her medically determinable impairments and the combined effects of her impairments, and erred legally and factually in making his vocational findings. She also argued in the alternative that remand was necessary because the ALJ who decided the case was not constitutionally appointed and was without jurisdiction to make the decision at issue. The Commissioner filed a Brief addressing Plaintiff's allegations. (Doc. 15) (Comm'r Br). The court determined remand was necessary because the ALJ failed to mention and apparently failed to consider one of Plaintiff's medically determinable impairments—colitis. (Doc. 17) (Court's M&O 8-10). Plaintiff now seeks payment of EAJA fees. (Doc. 19) (Mot. EAJA Fee).

II. Legal Standard

The court has a duty to evaluate the reasonableness of every fee request. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). The EAJA, 28 U.S.C. § 2412, 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.² Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995) (citing Estate of Smith v. O'Halloran, 930 F.2d 1496, 1501 (10th Cir. 1991) ). The test for substantial justification is one of reasonableness in law and fact. Id. The Commissioner bears the burden to show substantial justification for her position. Id.; Estate of Smith, 930 F.2d at 1501. The maximum fee of $125 per hour provided in § 2412(d)(2)(A), if awarded, may be adjusted for increases in the cost of living. Harris v. R.R. Ret. Bd., 990 F.2d 519, 521 (10th Cir. 1993) ; 28 U.S.C. § 2412(d)(2)(A)(ii).

The party seeking fees bears the burden of proving its request is reasonable and must "submit evidence supporting the hours worked." Hensley, 461 U.S. at 433, 434, 103 S.Ct. 1933. The objecting party has the burden to challenge, through affidavit or brief, with sufficient specificity to provide notice to the fee applicant the portion of the fee petition which must be defended. Bell v. United Princeton Prop., Inc., 884 F.2d 713, 715 (3d Cir. 1989).

III. Discussion

A. Arguments

The Commissioner argues that although he was unsuccessful in defending his decision below that fact alone does not mean his position was not substantially justified. (EAJA Response 2) (citing Hays v. Berryhill, 694 F. App'x 634, 637 (10th Cir. 2017) ). He acknowledges the ALJ's failure to discuss colitis was legal error but argues that even legal error does not mean a position was not substantially justified. Id. at 3 (citing George v. Astrue, 510 F. App'x 756, 759 (10th Cir. 2013) ). He points out that Plaintiff did not, and does not now, allege functional limitations from colitis and argues this fact supports finding that it was reasonable, and therefore substantially justified, to argue for harmless error.

Id. at 4. He argues that Plaintiff addressed colitis in only two sentences in her Social Security Brief and the Commissioner's one-paragraph response was a reasonable means to address Plaintiff's argument. Id. at 5. He argues that the court's citation to only two instances comprising six pages total in the record addressing colitis supports the conclusion that the Government's arguments in that regard were substantially justified. Id.

In her Memorandum and Reply Brief Plaintiff points out that when "evaluating whether the Commissioner's litigation position is substantially justified, the Court must focus on the issues forming the basis of relief to the prevailing party." (Doc. 21, p.3) (hereinafter Pl. EAJA Reply) (citing Hackett v. Barnhart, 475 F.3d 1166, 1173 n.1 (10th Cir. 2007) ). Plaintiff argues that she "was hospitalized for nearly a week due to colitis, and that hospitalization generated over 500 pages of records that were not acknowledged or considered by the ALJ." (Pl. EAJA Reply 3) (citing Court's M&O 9) ("The records of Plaintiff's hospitalization (586 pages) were included in the administrative record."). She points out that the court rejected the Commissioner's argument regarding harmless error "because it ‘ignores the requirement that an ALJ must consider all medically determinable impairments in combination when assessing RFC.’ " Id. (quoting Court's M&O 9). She also argues the Commissioner raised his harmless error argument for the first time in his EAJA Response Brief, and that in any case his claim of substantial justification lacks merit because when the Commissioner fails to consider dispositive evidence "the harmless error doctrine applies only under exceptional circumstances." Id. at 4 (citing, without citation to an electronic database or providing the court with a copy of the opinion, J.M.V. v. Saul, Case No. 18-1202-JWB, 2019 WL 5864809, at *1 (D. Kan. Nov. 8, 2019) ). She notes the Tenth Circuit's holding "that an agency's ‘failure to apply the correct legal standard or to provide this court with a sufficient basis to determine that appropriate legal principles have been followed is grounds for reversal’ independent of the substantial evidence standard." Id. at 5 (quoting Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) ).

Plaintiff argues that in defending the ALJ's decision before this court the Commissioner did not address the legal errors alleged in Plaintiff's Social Security Brief, and "[f]or the first time in his objection to Plaintiff's EAJA fee motion, Defendant confessed error in the ALJ's decision and advanced a new argument that sounds like ‘harmless error’ although it is not labeled as such." (Pl. EAJA Reply 5). She argues the Commissioner's "litigation strategy (focusing the court's attention away from the ALJ's legal errors by barely responding to Plaintiff's arguments and refocusing the Court's [sic] attention to the more lenient ‘substantial evidence’ standard of review) does not provide the ‘substantial justification’ required to cure the ALJ's unreasonable disregard of evidence the Court [sic] has already determined was likely to affect the outcome of the disability claim." Id. at 6. Finally, Plaintiff argues the Commissioner's arguments are not substantially justified because the court found that "even if the ALJ actually considered Plaintiff's colitis diagnosis and the relevant evidence, ‘it is impossible to ascertain’ how the ALJ weighed that evidence because he ‘said nothing about [it]." Id. (quoting Court's M&O at 10). She concludes, "Defendant's litigation position was no more substantially justified than the ALJ's legally flawed decision." Id. at 7.

B. Analysis

As Plaintiff points out, when "evaluating whether the Commissioner's litigation position is substantially justified, the Court [sic] must focus on the issues forming the basis of relief to the prevailing party." (Pl. EAJA Reply 3) (citing Hackett, 475 F.3d at 1173 n.1 ). And as the Commissioner points out, the mere fact that a court finds error on judicial review of a decision does not mean that the decision (or the Commissioner's defense of that decision) was not substantially justified. Madron v. Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011) ; (quoting Hackett, 475 F.3d at 1172) (" ‘The government's position can be [substantially] justified,’ we have repeatedly held, ‘even though it is not correct.’ "). The issue on which Plaintiff prevailed before this court was that the ALJ failed to demonstrate he considered her colitis. The Commissioner's argument (that the ALJ's failure to discuss colitis was harmless error) was a reasonable strategy before this court and demonstrates that his litigation position was substantially justified.

Plaintiff's arguments to the contrary are not persuasive. First, she argues that the Commissioner did not make a harmless error argument in the merits portion of this case. However, although the Commissioner did not call it harmless error, he argued that colitis appeared in the record only twice and only once within the relevant time, that the record showed no significant treatment or complaints, and in these circumstances "[t]he ALJ had no duty to assess any limitations." (Comm'r Br. 14). That was nothing but a harmless error argument. That is an argument which is reasonable in both law and fact in the circumstances of this case. That the court did not accept the argument does not make it less than substantially justified. The court recognized that the regulations require the Commissioner to consider all medically determinable impairments in combination and although "[p]erhaps the ALJ considered this evidence...