United States District Court, D. Massachusetts
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
motion for an award of attorney fees and expenses pursuant to
the Equal Access to Justice Act, 28 U.S.C. § 2412, in
the amount of $6, 023.42 is granted in part and denied in
part. [ECF No. 33]. The Commissioner does not contest that
Plaintiff is a “prevailing party” under this
statute, but argues that Plaintiff is not entitled to an
award of attorney fees because the Commissioner's
position was “substantially justified.”
“The burden for showing substantial justification lies
with the government.” Sinclair v. Berryhill,
284 F.Supp.3d 111, 114 (D. Mass. 2018). “A
‘position' of the United States is
‘substantially justified' if it is ‘justified
to a degree that could satisfy a reasonable person'-that
is, if the position has a ‘reasonable basis both in law
and fact.'” McLaughlin v. Hagel, 767 F.3d
113, 117 (1st Cir. 2014) (quoting Pierce v.
Underwood, 487 U.S. 552, 565 (1988)). “The
determination of whether the government's position was
substantially justified lies within the trial court's
discretion.” Stephenson v. Shalala, 846
F.Supp. 49, 50 (D. Kan. 1994) (citing Pierce, 487
U.S. at 552); see Ramos v. Barnhart, 103 Fed.
App'x 677, 2004 WL 1554408, at *1 (1st Cir. July 9, 2004)
(“We review the district court's decision regarding
substantial justification for abuse of discretion.”).
while the Court does not hold that the Government's
position was not substantially justified, it finds that the
Government has failed to meet its burden of showing
substantial justification. See Ogden v. Astrue, 2012
WL 2741557, at *2 (D. Colo. July 9, 2012) (“Although
the Commissioner sets forth [the relevant] legal precepts in
his brief, he nevertheless fails to carry his burden of
demonstrating that his position ‘during the entirety of
the civil action' was substantially justified.”
(citation omitted)); see also Taylor v. Colvin, 2015
WL 3407854, at *1 (W.D. Pa. May 27, 2015) (after reviewing
the record and under all of the circumstances present, court
awarded fees without expressly finding a lack of substantial
Government essentially argues that because “neither
party  specifically addressed” the narrow issue on
which the Court based its decision to remand, its opposition
to the petition as filed was justified. The fact that neither
Plaintiff nor the Government recognized the potential
inconsistency between the ALJ's RFC determination and the
plain language of the regulations does not alone necessarily
establish substantial justification. See Mar. v.
Astrue, 2012 WL 1597377, at *3 (D. Or. May 4, 2012)
(Commissioner failed to meet its burden where “[a]side
from the ‘narrow issue argument' the Commissioner
fail[ed] to provide any additional reasons that its position
was substantially justified”). Although this Court
identified the split among other district courts on this
issue and itself noticed the discrepancy, Plaintiff did raise
the issue more generally both before the ALJ and before this
Court. [ECF No. 31 at 16]. The Government's brief also
did not address the lack of clarity in the vocational expert
testimony that further warranted the remand. [ECF No. 31 at
22]. Moreover, as the Court noted in its prior order [ECF No.
Attorney fees were awarded in each of the cases cited in the
Court's March 9 decision [ECF No. 31] where a remand was
ordered on similar grounds, usually through an unopposed
motion or a joint stipulation between the claimant and the
government. See, e.g., Franklin v.
Berryhill, No. 16-cv-02284 (M.D. Pa. Feb. 26, 2018), ECF
No. 23; Villarreal v. Colvin, 16-cv-00272 (W.D. Tex.
Jan. 12, 2017), ECF No. 22; Wilkerson v. Commr of Soc.
Sec., No. 16-cv-11153, (E.D. Mich. Dec. 21, 2017), ECF
No. 21; Ferdin v. Colvin, No. 15-cv-00029, (W.D.
Tex. Oct. 15, 2015), ECF No. 21; Ford v. Colvin, No.
14-cv-01046, (D. Del. Aug. 19, 2015), ECF No. 20;
Campbell v. Astrue, No. 09-cv-05356 (E.D. Pa. Jan.
10, 2011), ECF No. 19.
[ECF No. 37]. The Government did not address any of these
cases in the parties' joint status report that was filed
in response to the Court's order. [ECF No. 38]. Although
courts often find substantial justification where the
decision to remand was a close call, the Government has not
met its burden to support the Court doing so here.
being said, given the numerous unsuccessful arguments set
forth in Plaintiff's appeal, the fact that the narrow
basis of the remand was not directly raised or fully argued
by either party, and the relatively small size of the record
in this otherwise typical Social Security case, the Court
reduces the requested award from 38 to 27 hours (removing 4
paralegal hours and 7 attorney hours). See Bachelder v.
Soc. Sec. Admin. Com'r, 2010 WL 4412291, at *2 (D.
Me. Oct. 29, 2010) (“A district court ‘should . .
. equitably reduce the overall award to reflect the
plaintiffs' less than complete success and the extent to
which their legal work was aimed at contesting the
government's reasonable position.”
(quoting McDonald v. Sec'y of Health &
Human Servs., 884 F.2d 1468, 1480 (1st Cir. 1989));
McDonald, 884 F.2d at 1480 (citing Hensley v.
Eckerhart, 461 U.S. 424, 436-37 (1983) (“The
district court may attempt to identify specific hours that
should be eliminated, or it may simply reduce the award to
account for the limited success”)); Knudsen v.
Colvin, 2015 WL 4628784, at *3 (D. Me. July 31, 2015)
(“[A] fee-shifting award under the EAJA is
appropriately reduced in scope to account for the prevailing
party's relative degree of success.” (citation
omitted)). See also Page v. Astrue, No. CIV.
08-CV-340-JD, 2009 WL 1798070, at *2 (D.N.H. June 23, 2009)
(reducing attorney hours from 45 to 30 hours); Dowell v.
Colvin, 2015 U.S. Dist. LEXIS 1128, at *11 (D. Me. Jan.
5, 2015) (“[M]y research suggests that the high end of
the range may be closer to 30 than to 25 hours” for
typical Social Security appeals); Staples v.
Berryhill, 2017 WL 2570890, at *4 (D. Me. June 13, 2017)
(reducing award from 32.85 hours to 23 hours, taking into
account size of the record, garden-variety nature of the
case, inefficient paralegal/attorney overlap, and
“efficiencies expected from counsel's familiarity
with this case and his experience as a Social Security
practitioner”). Accordingly, the Court grants the
motion [ECF No. 33] but awards Plaintiff a total of $4,
279.37, calculated based on 17.10 attorney hours and
9.90 paralegal hours and their respective rates as proposed
in the motion papers at [ECF Nos. 33, 33-1].