United States District Court, D. South Dakota, Southern Division
NEIL T. LARSON, Plaintiff,
CAROLYN W. COLVIN, ACTING COMM'R OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER GRANTING IN PART MOTION FOR
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE
Neil T. Larson filed a Motion for EAJA Award, Doc. 20, under
the Equal Access to Justice Act (EAJA) following this
Court's Opinion and Order Affirming in Part but Vacating
and Remanding the Commissioner's Decision to deny
Larson's application for social security disability
insurance benefits and supplemental security income, Doc. 18.
Larson seeks $8, 388.00 in attorney's fees, the $400.00
filing fee, and expenses and sales tax of $545.20. Doc. 20.
The Commissioner of Social Security
("Commissioner") opposes Larson's motion for
attorney's fees, arguing that her position was
substantially justified. Doc. 22. This case presents a
difficult decision on whether the Commissioner's position
in this matter was or was not substantially justified; after
all, this Court affirmed in part the Commissioner's
decision. Considering the case and the Commissioner's
arguments as a whole, this Court concludes that a proper
award is 80% of the attorney's fees, the filing fee, and
80% of the expenses and sales tax.
Facts Pertinent to Motion
Court issued a lengthy Opinion and Order Affirming in Part
but Vacating and Remanding the Commissioner's Decision,
Doc. 18, providing a detailed explanation of the facts and
issues in this case. In short, an administrative law judge
(ALJ) denied Larson's claims for social security
disability benefits after an administrative hearing. AR 7-21.
Afterwards, Larson hired new counsel who appealed to the
appeals council and submitted new material. AR 32-33, 314-18,
553-72. The new material included medical records from prior
hospitalizations and a recent and extensive evaluation of
Larson by a neuropsychologist whose findings undercut part of
the ALJ's foundation for denying benefits and raised
other issues of whether cognitive and psychological
impairments impact Larson's ability to work. Doc. 18 at
2. The appeals council purported to consider this new
information, AR 1, 4, but made no comment about the
information at all, using the stock sentence of "[w]e
found that this information does not provide a basis for
changing the Administrative Law Judge's decision."
were essentially five issues before this Court on appeal.
First, the Commissioner raised a defense of res judicata
based on a previous denial of social security benefits to
Larson in 2010, which denial he did not appeal. This Court
ruled in Larson's favor on that issue because he was not
seeking to reopen or challenge that decision, and besides the
Commissioner had not asserted res judicata previously as an
affirmative defense or reason to deny the claim. Doc. 18 at
Larson contended that the ALJ had failed to identify
cardiovascular issues and possible peripheral vascular
disease as among Larson's sever impairments. This Court
affirmed the ALJ's decision that the medical evidence was
insufficient to characterize those issues as severe
impairments for Larson. Doc. 18 at 18-20.
Larson argued that the ALJ should have determined that
Larson's impairments met or equaled listed level
impairments for degenerative disc disease and cardiovascular
disease. This Court affirmed the ALJ's decision that
Larson's conditions did not meet or equal those listed
impairments. Doc. 18 at 20-22.
fourth and fifth issues, this Court ruled in favor of Larson
because the additional material submitted after the ALJ's
decision and ostensibly considered by the appeals council
prevented a finding of substantial evidence on the record as
a whole to affirm the ALJ. This Court struggled to predict
how the ALJ would have weighed the extensive
neuropsychological evaluation which conflicted with the
residual functional capacity (RFC) finding generally and the
specific decision of the ALJ that Larson had the RFC to
perform duties as a mail clerk. Doc. 18 at 22-29.
Substantially Justified Standard
the EAJA, the prevailing party in a proceeding for judicial
review of federal agency action is entitled to legal fees and
costs "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): see also Goad v. Barnhart. 398 F.3d
1021, 1025 (8th Cir. 2005). Here, Larson can be considered
the prevailing party because he obtained remand under 42
U.S.C. § 405(g), Shalala v. Schaefer, 509 U.S.
292, 302 (1993), and the Commissioner does not argue that
special circumstances make an award unjust. Thus, the issue
before this Court is whether the Commissioner's position
was substantially justified.
justified" in this context means '"justified to
a degree that could satisfy a reasonable person' or
having a 'reasonable basis in law and fact.'"
Koss v. Sullivan, 982 F.2d 1226, 1229 (8th Cir.
1993) (quoting Pierce v. Underwood, 487 U.S. 552,
565, 566 n.2 (1988)). In other words, the standard is whether
the Commissioner's position is "clearly reasonable,
well founded in law and fact, solid though not
necessarily correct." Lauer v. Barnhart, 321
F.3d 762, 764 (8th Cir. 2003) (quoting Friends of
Boundary Waters Wilderness v. Thomas. 53 F.3d 881, 885
(8th Cir. 1995)); see also Goad. 398 F.3d at 1025
("A position enjoys substantial justification if it has
a clearly reasonable basis in law and fact."). Thus, the
Commissioner's position in "denying benefits can be
substantially justified even if the denial is unsupported by
substantial evidence on the record as a whole."
Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir.
1991); see also Goad. 398 F.3d at 1025 ("[A]
loss on the merits by the Commissioner does not give rise to
a presumption that she lacked substantial justification for
her position."). "The commissioner bears the burden
of proving that both [her] pre-litigation conduct, including
the ALJ's decision itself, and [her] litigation position
were substantially justified." Stewart v.
Astrue, 561 F.3d 679, 683 (7th Cir. 2009) (per curiam);
see also Gowen v. Bowen. 855 F.2d 613, 615 (8th Cir.
1988) ("The Secretary bears the burden of proving that
its position was substantially justified at both the
administrative and litigation levels.").
the Commissioner prevailed on two of the five issues,
prompting this Court to affirm the ALJ's ruling in part.
Obviously, the Commissioner's arguments were more than
"substantially justified" on those issues.
Moreover, Larson sought reversal and a directive to award
benefits, which this Court refused to do.
vary in how they characterize the "position" of the
government under the EAJA, with some focusing on the issue
that led to remand and others taking a more holistic view of
the government's case. Compare Tobeler v.
Colvin, 749 F.3d 830, 834 (9th Cir. 2014) (explaining
that Ninth Circuit precedent requires an award of "fees
when 'the Secretary's position on the . . .
issues that led to remand was not substantially
justified" (alteration in original) (quoting Flores
v. Shalala. 49 F.3d 562, 564 (9th Cir. 1995))), and
Air Transp. Ass'n of Can, v. FAA. 156 F.3d 1329,
1332 (D.C. Cir. 1998) ("[I]t cannot be the case that
Congress intended that a party who prevails on an essential
ground of a petition to set aside government action cannot
recover the congressionally contemplated fees because the
government's action was substantially unjustified on only
one of several possible bases."), with Meyer v.
Colvin, 754 F.3d 251, 255 (4th Cir. 2014) ("[In]
determining whether the [Government's position in a case
is substantially justified, we look beyond the issue on which
the petitioner prevailed to determine, from the totality of
circumstances, whether the [G]overnment acted reasonably in
causing the litigation or in taking a [particular] stance
during the litigation." (alterations in original)
(quoting Roanoke River Basin Ass'n v. Hudson,
991 F.2d 132, 139 (4th Cir. 1993))), and Stewart,
561 F.3d at 683 ("It is true that EAJA fees are not
determined by the number of successful arguments, but a
party's success on a single claim will rarely be
dispositive of whether the government's overall position
was substantially justified."). The United States Court
of Appeals for the Eighth Circuit appears to take a holistic
approach when determining whether the government's
position is substantially justified. See United States v.
Hurt. 676 F.3d 649, 652 (8th Cir. 2012) ("The EAJA
'favors treating a case as an inclusive whole, rather
than as atomized line-items.' In determining whether the
government's position is 'substantially justified,
' the district court should make 'only one threshold
determination for the entire civil action.'"
(citation omitted) (quoting Comm'r. INS v. Jean,
496 U.S. 154, 161-62, 159 (1990))). But see Sierra Club
Northstar Chapter v. Kimbell. 640 F.Supp.2d 1082,
1086-87 (D. Minn. 2009) (stating that as of 2009,
"whether the substantially justified inquiry should be
conducted on an issue-by-issue basis or by taking a more
holistic view of the government's position in bringing
about or continuing the litigation is, at least in this
circuit, open to debate"). Yet even those courts that
take a holistic approach will award attorney's fees when
the government takes a substantially unjustified position on
a significant issue that affects the entirety of the case.
See Hackett v. Barnhart 475 F.3d 1166, 1173 n.1
(10th Cir. 2007) (acknowledging that Jean, 496 U.S. at 162,
requires courts to treat the government's case as an
"inclusive whole, " but finding that the
Commissioner's position was not substantially justified
despite the Commissioner prevailing on five out of six issues
before district court, where plaintiff obtained remand based
on single discrete issue that resulted in an unreasonable
denial of benefits, other issues were unrelated to that
issue, and other issues did not provide a basis to affirm
ALJ's decision); Roanoke River Basin, 991 F.2d
at 139 ("[A] more egregious example of misconduct might,
even if confined to a narrow but important issue, taint the
government's 'position' in the entire case as
unreasonable, whereas a totally insupportable and clearly
unreasonable position by the government on an inconsequential
aspect of the litigation might not.").
courts have employed the analysis in Hensley v.
Eckerhart, 461 U.S. 424 (1983), when evaluating an award
of attorney's fees under the EAJA, even though
Hensley was a case involving attorney's fees in
a 42 U.S.C. § 1988 context. See Thomas v.
Astrue. No. 4:10CV3250, 2012 WL 3263629 (D. Neb. Aug 9,
2012); Stanfield v. Apfel, 985 F.Supp. 927, 930
(E.D. Mo. 1997). Hensley reasoned that "where
the plaintiff achieve[s] only limited success, the district
court should award only that amount of fees that is
reasonable in relation to the ...