United States District Court, D. Montana, Great Falls Division
DREW J. COLE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM AND ORDER
Johnston, United States Magistrate Judge
Drew J. Cole (Cole)) has moved for an award of attorney's
fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412(d). The Acting Commissioner of the Social
Security Administration (Commissioner) opposes the motion.
applied for disability benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-433. The
Commissioner denied the application. Cole sought judicial
review. Cole argued that the Commissioner's decision
should be reversed because the administrative law judge (ALJ)
had made four errors. (Doc. 12). Cole argued that the ALJ had
erred: 1) by failing to provide specific reasons for
discounting his testimony; 2) by failing to properly consider
Listings 11.08C, 11.14B, and 1.06; 3) by improperly
discounting the opinions of certain health care providers;
and 4) by failing to incorporate all of his impairments into
the hypothetical question presented to the vocational expert.
(Doc. 18 at 12).
Court rejected three of Cole's arguments. (Doc. 18 at
19-35). The Court concluded: 1) that the ALJ did not err with
respect to her consideration of Listings 11.08C, 11.14B, and
1.06; 2) that the ALJ did not err when she discounted the
opinions of some of Cole's health care providers; and 3)
that the ALJ did not err when she presented her hypothetical
question to the vocational expert. Id. The Court
agreed with Cole, however, that the ALJ had erred when she
failed to identify specific evidence in the record that
supported her decision to discount Cole's testimony.
(Doc. 18 at 18-19).
Court reversed the Commissioner's decision and remanded
the case for further administrative proceedings under
sentence four of 42 U.S.C. § 405(g). (Doc. 18 at 37).
The Court directed the ALJ to revisit the issue of Cole's
credibility on remand. (Doc. 18 at 19, 36-37). The Court
directed the ALJ to identify “the specific parts of Mr.
Cole's testimony [that] she found not credible” and
explain why the testimony was not credible “in light of
the evidence and medical records referenced in [her]
decision.” (Doc. 18 at 18, 36-37). The Court entered
its judgment on June 6, 2018. (Doc. 19).
filed the present motion on August 8, 2018. (Doc. 20). Cole
seeks an award of attorney's fees under EAJA in the
amount of $10, 036.29. (Doc. 20 at 4).
Commissioner opposes Cole's request for attorney's
fees. The Commissioner argues that Cole's request for
attorney's fees should not be denied because: 1) the
positions that she and the ALJ asserted were substantially
justified, and 2) the fee amount requested by Cole is
unreasonable given Cole's “limited ratio of
success.” (Doc. 21 at 2-3).
EAJA provides that a prevailing party in an action for Social
Security benefits, other than the United States, is entitled
to recover reasonable attorney's fees unless the court
finds that the positions of both the ALJ and the Commissioner
were substantially justified, or that special circumstances
make a fee award unjust. 28 U.S.C. § 2412(d)(1)(A);
Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).
claimant who receives a sentence four remand in a Social
Security case is a prevailing party for purposes of EAJA
regardless of whether disability benefits are ultimately
awarded. Shalala v. Schaefer, 509 U.S. 292, 301-02
(1993); Flores v. Shalala, 49 F.3d 562, 568 (9th
the Court remanded this matter to the ALJ for further
proceedings under 42 U.S.C. § 405(g). (Doc. 18 at 37).
Cole is the prevailing party.