IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

SHERI DANIELS, §

 §

Plaintiff, §

 §

v. § Civil Action No. 3:05-CV-1543-L

 § ECF

MICHAEL J. ASTRUE, §

Commissioner of Social §

Security Administration, §

 §

Defendant. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

Pursuant to the District Court’s Order (doc. 26), Plaintiff’s “Motion for Attorney Fees and

Court Costs Under the Equal Access to Justice Act and Supporting Brief” (doc. 25) and Plaintiff’s

“Motion to Amend Plaintiff’s Motion for Attorney Fees and Court Costs Under the Equal Access

to Justice Act to Include Additional Attorney Services Required to Litigate Such Motion” (doc. 30)

have been referred to the United States Magistrate Judge for hearing, if necessary, and

determination. Both motions have been fully briefed and are ripe for review. 

I.

Plaintiff Sheri Daniels (“Plaintiff”) protectively filed an application for Title II benefits on

July 16, 2002, alleging disability since May 2, 2001 due to asthma, diabetes, hypertension, and

reduced lung capacity. (Tr. 83–85, 96–99, 101.) On February 7, 2005, a hearing was held before

an Administrative Law Judge (“ALJ”). (Tr. 453–83.) The ALJ determined that while Plaintiff’s

diabetes mellitus, hypertension, asthma, and depression were severe impairments, they did not meet

or equal a listed impairment. (Tr. 17, 23.) The ALJ found that Plaintiff had a residual functional

capacity (“RFC”) to perform sedentary work activity in a climate-controlled environment with no
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concentrated exposure to dusts, fumes, odors, or gases. (Tr. 21, 23.) She was also limited to simple

and detailed, but not complex job instructions. (Id.) The ALJ concluded that Plaintiff was capable

of performing her past relevant work which was semi-skilled, and therefore, was not disabled. (Tr.

23.)

Plaintiff brought this action, appealing the ALJ’s decision, on August 2, 2005. (Doc. 1.) On

August 1, 2007, this Court recommended affirming the Commissioner’s decision. (Doc. 21.) On

March 31, 2008, the District Court declined to adopt this Court’s recommendation, reversed the final

decision of the Commissioner, and remanded the case for further proceedings. (Doc. 23, 24.)

Plaintiff now seeks attorney fees under the Equal Access to Justice Act (“EAJA”) and also seeks to

amend her motion to include the time she spent preparing the reply brief. 

II.

The EAJA provides that a court can properly award attorney fees to a claimant against the

Government if “(1) the claimant is a ‘prevailing party’; (2) the Government’s position was not

‘substantially justified’; and (3) there are no special circumstances making an award unjust.”

Davidson v. Veneman, 317 F.3d 503, 506 (5th Cir. 2003). Defendant does not dispute the existence

of the first or third elements. Defendant argues that its position was “substantially justified.” In

support of this argument, the Commissioner relies primarily upon statements by this Court in the

Findings, Conclusions, and Recommendation that the District Court did not adopt. (Response at 6-

9.) Defendant states that “the fact that the U.S. Magistrate Judge recommended that the Court affirm

the Commissioner’s decision supports the Commissioner’s contention that the Agency’s position

was reasonable,” citing Davidson, 317 F.3d at 506, citing Spawn v. W. Bank-Westheimer, 989 F.2d

830, 840 (5th Cir. 1993). However, in Davidson, the Fifth Circuit Court of Appeals pointed out that
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in Spawn, it “explicitly rejected the argument that [its] interpretation of the law on appeal was

dispositive on the issue of whether the Government was substantially justified. Spawn, 989 F.2d at

840. In fact, “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.” 28 U.S.C § 2412(d)(1)(B). The fact that one court agreed or

disagreed with the Commissioner does not establish that a position is substantially justified. Pierce

v. Underwood, 487 U.S. 552, 569 (1998). Several appellate courts have awarded attorney fees

despite the fact that another court had agreed with the Commissioner. See e.g. Howard v. Barnhart,

376 F.3d 551, 552 (6th Cir. 2004); see also Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003).

Here, the fact that the United States Magistrate Judge agreed with the Commissioner is not enough

to show that the Commissioner’s position was substantially justified.

During the administrative proceeding, at the fourth step of the five-step sequential process,

i.e., whether Plaintiff has the residual functional capacity to perform her past relevant work, the ALJ

concluded that she did. The ALJ decided that Plaintiff was not disabled and therefore not entitled

to disability insurance benefits. (Tr. 22.) At the hearing Plaintiff and vocational expert Russell

Bowden testified. (Id. 13.) On appeal, Plaintiff argued that the finding regarding her mental

residual functional capacity is unsupported by expert medical opinion or any other substantial

evidence. The ALJ held: “[t]he claimant is also limited to simple to detailed, not complex job

instructions.” (Tr. 23.) Plaintiff urged that the ALJ’s conclusion is inconsistent with the opinions

of State agency medical consultants (“SAMCs”) Jim Cox, Ph. D., and Robert Gilliland, M.D. Dr.

Cox found that Plaintiff “can understand, remember, & carry out only simple instructions, make
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simple decisions, attend & concentrate for a short time.” (Id. 406.) This conclusion was confirmed

by Dr. Gilliland. (Id.) In other words, The SAMCs concluded that Plaintiff had the mental residual

functional capacity to perform unskilled work. Plaintiff argued that the ALJ failed to apply the

correct legal standard to the SAMCs’ findings and failed to explain the weight given these opinions

in compliance with 20 C.F.R. § 404.1527. Plaintiff claims she was prejudiced because if the ALJ

had accepted the SAMCs’ opinions regarding her mental residual functional capacity, the ALJ

would not have concluded that Plaintiff could perform her past relevant work, semi-skilled

occupations, when there was no evidence to support the ALJ’s conclusions that she could perform

“simple to detailed, but not complex tasks.” The ALJ did not proceed to step five to determine if

there was other work in the national and local economies that Plaintiff could perform. The agency

position that Plaintiff is not disabled was not substantially justified because the ALJ failed to explain

why she rejected the SAMCs’ opinions as to Plaintiff’s mental residual functional capacity as

required by 20 C.F.R. § 404.1527(f). Further, the ALJ’s conclusion that Plaintiff is able to perform

her past relevant semi-skilled work is not supported by substantial evidence. Additionally, the

Commissioner’s legal positions on appeal were not substantially justified given the record in this

case, even though the Commissioner prevailed at the recommendation level.

As the Fifth Circuit Court of Appeals recognized in Baker v. Bowen, 839 F.2d 1075, 1081

(5th Cir. 1988), although “a finding that the ALJ’s decision is unsupported by substantial evidence

does not automatically mandate an award of attorney fees under the EAJA,” if the case “lacks

substantial evidence, and does not turn on mere evidentiary ambiguities or involve novel legal

principles, the absence of support for the [Commissioner’s] decision is at once an absence of

justification for [his] position.” Id., citing Herron v. Bowen, 788 F.2d 1127, 1130 (5th Cir. 1986).
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This case neither turned on evidentiary ambiguities nor involved novel legal principles. In sum, the

Commissioner has not met its burden to show that substantial justification supports its position.

Accordingly, the Court finds that Plaintiff is entitled to reasonable attorney fees pursuant to the

EAJA and recommends that the District Court grant the attorney fees Plaintiff requests.

Defendant does not challenge the reasonableness of Plaintiff’s attorney’s fees. Plaintiff has

also filed a Motion to Amend Plaintiff’s Motion for Attorney Fees and Court Costs under the Equal

Access to Justice Act to Include Additional Attorney Services Required to Litigate Such Motion

(doc. 30). Defendant has not objected to this motion and the time to do so has expired.

Recommendation

This Court recommends that the District Court GRANT both Plaintiff’s motion for attorney

fees, and motion to amend Plaintiff’s motion for attorney fees. The Court also recommends that the

District Court award Plaintiff $9,082.06 for 56.4 hours of attorney services, plus costs of $304.60

and expenses of $41.28, for a total award of $9,427.94.

SO RECOMMENDED, August 11, 2008.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE
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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions, and

recommendation on the parties. Pursuant to Title 28, United States Code, Section 636(b)(1), any

party who desires to object to these findings, conclusions, and recommendation must serve and file

written objections within ten days after being served with a copy. A party filing objections must

specifically identify those findings, conclusions, or recommendation to which objections are being

made. The District Court need not consider frivolous, conclusory or general objections. A party's

failure to file such written objections to these proposed findings, conclusions, and recommendation

shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S.

140, 150 (1985). Additionally, any failure to file written objections to the proposed findings,

conclusions, and recommendation within ten days after being served with a copy shall bar the

aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge

that are accepted by the District Court, except upon grounds of plain error. See Douglass v. United

Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).