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Harmer v. Berryhill

United States District Court, D. Utah

February 7, 2019

JARED HARMER, Plaintiff,
v.
NANCY A. BERRYHILL, in her capacity as Acting Commissioner of the Social Security Administration, Defendant.

          Evelyn J. Furse Magistrate Judge

          MEMORANDUM DECISION AND ORDER

          Clark Waddoups United States District Court Judge

         INTRODUCTION

         Plaintiff Jared Harmer filed a Complaint against the Social Security Administration (“SSA”) following the SSA's denial of his application for disability benefits and supplemental security income. The court remanded the case after concluding the SSA applied improper methodologies when making its disability determination. The court further ordered the SSA to pay attorney fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).[1] Plaintiff then filed a Motion for Attorney Fees. Subject to the modifications stated herein, the court grants the motion.

         BACKGROUND

         Plaintiff Jared Harmer filed a Complaint against the Social Security Administration (SSA”) on the basis that it improperly denied his application for disability benefits and supplemental security income. Magistrate Judge Evelyn J. Furse reviewed the Administrative Record and found the Administrative Law Judge (“ALJ”) failed to consider all of the opinions of Mr. Harmer's treating physicians, and further failed to disclose the weight afforded to those opinions. Report & Recommendation, at 12-13 (ECF No. 38).

         Judge Furse also found the ALJ applied an improper methodology when determining Mr. Harmer's ability to work. Rather than weighing “the evidence received and the medical opinions and then” determining Mr. Harmer's residual functional capacity (“RFC”), the ALJ determined Mr. Harmer's RFC and then rejected nonconforming evidence. Id. at 12, 15.

         Judge Furse found the ALJ's determination about Mr. Harmer's credibility suffered from similar flaws. The ALJ based credibility on whether Mr. Harmer's testimony conformed to the ALJ's determination of his RFC and then used boilerplate language that precluded a meaningful review of how the ALJ's decision was reached. Id. at 16-17. Based on these errors, Judge Furse recommended that Mr. Harmer's case be remanded to the SSA because one could not determine whether the SSA had substantial evidence to deny Mr. Harmer benefits.

         Notably, Judge Furse further recommended that the SSA be required to consider the examination conducted by Antonietta Russo, Ph.D. and the conclusions she reached about Mr. Harmer's learning disabilities and functioning. She noted the Appeals Council expressly made Dr. Russo's examination a part of the record. Id. at 19. Dr. Russo concluded that Mr. Harmer's limitations precluded “performance for 15% or more of an 8-hour work day” in some categories and that one could expect him to be absent more than three days a month. Russo Med. Source Statement, Admin. R. at 763, 765 (ECF No. 8-17). Dr. Russo based her conclusions on testing and interviews conducted over multiple days, and on the fact that the testing showed Mr. Harmer was not malingering. Id. at 761-62. These findings were material to determining whether Mr. Harmer is disabled.

         Viewing the totality of errors, Judge Furse also concluded the Commissioner's position was not “substantially justified given the patent failings of the ALJ's opinion.” Id. at 2. She therefore recommended that the court “award reasonable attorney's fees and order Mr. Harmer to submit evidence on the amount of the fees.” Id. at 20.

         On August 17, 2017, the SSA filed a timely Objection to Judge Furse's recommendation. Following a de novo review of the record, the court adopted Judge Furse's recommendation in its entirety and issued an Order on February 8, 2018 that remanded the case to the SSA (ECF No. 42). In keeping with 28 U.S.C. § 2412(d)(1)(B), Mr. Harmer then filed a Motion for EAJA Attorney's Fees within thirty days of the court's final judgment (ECF No. 43). He asserted such fees are appropriate because the SSA's position was not substantially justified. On May 17, 2018, Mr. Harmer filed a Supplemental Motion (ECF No. 50), which noted that Mr. Harmer was found to be disabled when the case was remanded. Mr. Harmer's Motion for Attorney Fees is now before the court.

         ANALYSIS

         I. SUBSTANTIAL JUSTIFICATION REVIEW

         When a plaintiff prevails in “any civil action (other than cases sounding in tort)” against the United States, the plaintiff is entitled to attorney fees “unless the court finds [1] that the position of the United States was substantially justified or [2] that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). The Commissioner contends the ...


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