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Cole v. Berryhill

United States District Court, D. Montana, Great Falls Division

November 6, 2018

DREW J. COLE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          John Johnston, United States Magistrate Judge

         Plaintiff 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.

         BACKGROUND

         Cole 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).

         The 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).

         The 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).

         Cole 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).

         The 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).

         DISCUSSION

         The 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).

         A. Prevailing Party

         A 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 Cir. 1995).

         Here, 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.

         B. Substantia ...


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