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Cole v. Colvin

United States District Court, D. South Dakota, Western Division

February 19, 2015

BEVERLY J. COLE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JEFFREY L. VIKEN, Chief District Judge.


On March 21, 2014, the court entered an order (1) reversing the decision of the Commissioner of the Social Security Administration ("Commissioner") denying Beverly Cole's application for benefits, (2) denying the defendant's motion to affirm the decision of the Administrative Law Judge ("ALJ"), and (3) remanding the case for further administrative proceedings. (Docket 33). Pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, Catherine Ratliff, counsel for Ms. Cole, timely moved for an award of attorney's fees and expenses. (Docket 35). Ms. Cole seeks an award of $27, 228.83 in attorney's fees. She also requests expenses representing a 6-percent state and local sales tax of $1, 633.73 and $528.01 in litigation costs "for the cost of [a] treating specialist opinion, vocational aptitude/ability testing, medical records, [and] on-line expert opinion." Id. at 1. The Commissioner opposes Ms. Cole's motion. (Docket 38). For the reasons stated below, the court grants in part and denies in part Ms. Cole's motion.


Under the EAJA, a court shall award to a prevailing party, other than the United States, fees and expenses[1] incurred in any civil action brought by or against the United States, "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). A party seeking such an award must comply with the following requirements: (1) the party must file an application for fees and expenses demonstrating the party is the prevailing party and is eligible to receive an award; (2) the party must submit the application within 30 days of final judgment in the case;[2] (3) the party must indicate the amount sought and provide an itemized statement in support; and (4) the party must allege the position of the United States was not substantially justified. 28 U.S.C. § 2412(d)(1)(B). "Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses are sought." Id.

The court finds Ms. Cole fully complied with the requirements of the EAJA. Ms. Cole is the prevailing party under the court's reversal and remand order and subsequent judgment. (Dockets 33 & 34); see Larson v. Astrue, Civil No. 06-1734 PJS/FLN, 2008 WL 2705494, at *2 (D. Minn. July 9, 2008) (citing Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993)) ("The Supreme Court has held that a judgment granting remand is a final judgment for which fees may be granted."). Ms. Cole filed her motion for fees and expenses well within the EAJA's 30-day window following the close of the appeal period. (Docket 35). Her attorney, Ms. Ratliff, set forth the amount requested and properly provided an itemized log detailing the actual time expended in this case. (Dockets 35 & 37-2).

The heart of the parties' dispute centers around the fourth requirement of the EAJA-whether the position of the United States was substantially justified. The court notes the government at all times bears the burden of proving its position was substantially justified. Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005). A social security claimant may be the prevailing party for purposes of the EAJA, yet still not be entitled to an award of fees if the government's position was substantially justified. "A position enjoys substantial justification if it has a clearly reasonable basis in law and fact." Id . A loss on the merits by the government does not create a presumption that it lacked substantial justification for its position. Id . This distinction is explained as follows:

The district court correctly recognized that "fees are not... awarded just because the Secretary [loses a] case." The Secretary's position in denying benefits can be substantially justified even if the denial is unsupported by substantial evidence on the record as a whole. This is so because the substantial evidence and substantial justification standards are different. Under the substantial evidence standard, the district court must consider evidence that both supports and detracts from the Secretary's position. In contrast, under the substantial justification standard the district court only considers whether there is a reasonable basis in law and fact for the position taken by the Secretary. Because the standards are "neither semantic nor legal equivalents, " the Secretary can lose on the merits of the disability question and win on the application for attorney's fees.

Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir. 1991) (internal citations omitted).

The court finds the government cannot meet its burden in showing substantial justification for its position. The government's position was not well founded in fact or law, as explained in the court's reversal and remand order. Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003) ("The standard is whether the Secretary's position is clearly reasonable, well founded in law and fact, solid though not necessarily correct.'") (citation omitted).

The government asserts the "ALJ waded into [a] complicated record" in Ms. Cole's case and that Ms. Cole's "case involve[d] primarily factual questions touching on complicated neurosurgery issues, " which the government was substantially justified in defending under existing precedent for the United States Court of Appeals for the Eighth Circuit. (Docket 38 at p. 3). The government further asserts this is particularly true where the court remanded Ms. Cole's case based on the ALJ's assessment of witness' testimony and credibility. Id. at 3-4. The government's assertions represent a skewed reading of the court's decision reversing the decision of the Commissioner. (Docket 33).

Integral to the court's decision to reverse the decision of the Commissioner was the ALJ's decision to "rely[] on the opinions of Dr. Janese, Dr. Buchkoski and Dr. Soule, [while] fail[ing] to provide good reasons' for discounting the opinions of Ms. Cole's treating physicians." Id. at 29.

The ALJ relied on the opinions of Dr. Janese, a non-examining physician, who opined that Ms. Cole fully recovered from any brain condition related to her hydrocephalus following a successful brain shunt surgery. However, Dr. Janese mistakenly believed Ms. Cole's shunt surgery occurred in 1982 when the surgery actually occurred in 1998.[3] Id. at 13-14. This mistake alone demonstrates Dr. Janese's lack of familiarity with Ms. Cole's medical records. Id. at 14. Nonetheless, the ALJ continued to accept Dr. Janese's opinion that Ms. Cole's hydrocephalus was corrected by the shunt surgery despite two of Ms. Cole's treating physicians, Dr. Lassegard and Dr. Finley, concluding to the contrary. Id. at 14-15.

Dr. Lassegard determined Ms. Cole continued to suffer from delusional thoughts two years after her abscess surgery. Id. at 15. Dr. Finley concluded that Ms. Cole exhibited symptoms of slit ventricle syndrome after reviewing a CT scan of her brain. Id . For his part, Dr. Janese attributed Ms. Cole's delusional thoughts to "general anesthesia and opiates, " and opined that the "slit-like ventricles" meant the brain shunt was working. Id. at 14. The ALJ did not ...

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