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Weimer v. Colvin

United States District Court, W.D. Arkansas, Fort Smith Division

May 12, 2016

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration DEFENDANT



Before the Court is Plaintiff’s Motion for an Award of Attorney Fees under the Equal Access to Justice Act (hereinafter “EAJA”). (Doc. 17). Plaintiff, Ryan W. Weimer, appealed the Commissioner’s denial of benefits to the Court. On January 8, 2014, the undersigned entered a Memorandum Opinion and Order Remanding the case to the Commissioner, pursuant to Sentence Six of 42 U.S.C. §405(g), for consideration of additional evidence. (Docs. 13-14). On remand, the ALJ considered the additional evidence, conducted a new hearing, and issued a fully favorable decision, finding Plaintiff disabled. Plaintiff thereafter moved for the entry of a final judgment by this Court so that Plaintiff could seek an award of attorney’s fees. On November 2, 2015, a Judgment was entered, affirming the Commissioner’s favorable decision. (Doc. 16).

Plaintiff now moves for an award of $4, 320.20 in attorney’s fees and expenses under EAJA, pursuant to 28 U.S.C. §2412, requesting compensation for 23.20 attorney hours of work performed before the Court in 2012, 2013, 2014, and 2015, at an hourly rate of $183.10 for hours spent in 2012, $185.95 for hours spent in 2013-2015, and $17.85 in expenses.

Defendant filed a response to Plaintiff’s request, stating that Plaintiff is not entitled to EAJA fees because the position of the Defendant was substantially justified. (Doc. 19).

The Court will first address the question of whether the Defendant’s position was substantially justified in the underlying proceeding.

“It is the government’s burden to prove that its position was substantially justified.” Conklin v. Astrue, 282 Fed.Appx. 488, 489 (8th Cir. 2008). The Eighth Circuit in Conklin continued:

It can accomplish this by showing that the position was “justified in substance or in the main - that is, justified to a degree that could satisfy a reasonable person.” (citation omitted). To warrant such a characterization, the position must have “reasonable basis both in law and fact.” (citations omitted).


The Defendant argues that the ALJ and Appeals Council cannot be faulted for not considering evidence that was not before them when they issued the unfavorable decision and denial of Plaintiff’s request for review. (Doc. 19).

A brief history of this case is necessary. As noted in the Memorandum Opinion entered by the undersigned on January 8, 2014 (Doc. 13), Plaintiff filed his applications for Child’s Insurance Benefits (CIB) and Supplemental Security Income (SSI) benefits on January 25, 2011, and February 2, 2011, respectively. At the administrative hearing held before the ALJ on April 3, 2012, Plaintiff chose not to be represented by counsel. On June 27, 2012, the ALJ issued unfavorable decisions, and found Plaintiff could perform work as a kitchen helper/dishwasher, hand packager, and bagger/sacker. Plaintiff obtained counsel subsequent to the entry of the ALJ decisions.

Plaintiff filed this action (Doc. 1), and on February 27, 2013, filed a Motion for Remand and Brief with New Evidence in Support of Complaint for Judicial Review. (Doc. 11). Attached to the motion was the September 7, 2012 report of Dr. Robert Spray. In the Memorandum Opinion dated January 8, 2014, the undersigned concluded that the fact that Dr. Spray’s report did not exist on the date of the ALJ’s decision, coupled with the fact that Plaintiff was unrepresented by counsel until after the ALJ’s decision, “serves as cause sufficient to excuse Plaintiff’s failure to include these records in the administrative proceedings.” Goad v. Shalala, 7 F.3d 1397, 1398 (8th Cir. 1993).” (Doc. 13 at p. 3). The Court next considered the issue of materiality, noting that the evidence of record revealed that Plaintiff had a long history of treatment for seizure disorder, incidents of suicidal/homicidal ideation, and borderline intellectual dysfunction/mild mental retardation, and that Dr. Spray had been treating Plaintiff since June of 2007. In Dr. Spray’s September 7, 2012 report, Dr. Spray found Plaintiff had marked limitations in eleven categories, and the Court concluded that remand was appropriate pursuant to sentence six of 42 U.S.C. §405(g), for consideration of the additional medical evidence, “as there is a reasonable likelihood that it would have changed the Commissioner’s determination.” (Doc. 13 at p. 4). At that time, the Court did not find it necessary to address any other substantive issue addressed by the ALJ in his decision.

The Court must now determine whether the Defendant was substantially justified in initially denying Plaintiff’s applications for CIB and SSI. “The substantial justification standard is not the legal equivalent of the substantial evidence test, which is applicable in a judicial review of the commissioner’s final decision.” Strom v. Astrue, Civ. No. 07-150 ((DWF/RLE), 2008 WL 2098107 at *2 (D. Minn. Apr. 28, 2008).

A “substantially justified” position is one that is “clearly reasonable, well-founded in law and fact, and solid, though not necessarily correct.” Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003), quoting Friends of Boundary Waters Wilderness v. Thomas, supra at 885; see also, Herman v. Schwent, supra at 1065 (“The Government proves its position was substantially justified by showing the position was ‘“justified in substance or in the main” - that is, justified to a degree that could satisfy a reasonable person.’”); SEC v. Zahareas, 374 F.3d 624, 626 (8th Cir. 2004)(same).
In contrast, substantial evidence is a more quantitative measure. It is evidence, in the Record as a whole, which a reasonable mind would accept as adequate to support a conclusion. See, Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). These differing evidentiary standards make it possible for the Commissioner to lose on the merits of the disability issue, and yet win ...

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