CLAIRE V. EAGAN, District Judge.
Now before the Court is plaintiff's motion for award of attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA) (Dkt. # 28). Plaintiff requests $5,801.90 in attorney fees pursuant to the EAJA.
On May 19, 2017, plaintiff filed this case seeking judicial review of the decision of the Commissioner of Social Security Administration (SSA) denying her claim for disability benefits. Dkt. # 2. The matter was referred to a magistrate judge for a report and recommendation, and the magistrate judge recommended that the Court reverse and remand the Commissioner's decision for further administrative proceedings. Dkt. # 23. The magistrate judge stated that, in assessing plaintiff's residual functional capacity (RFC), the administrative law judge (ALJ) failed to properly address the opinions of plaintiff's treating neurologist, Jeremy Salas, M.D., and consultative psychologist, Nancy Barton, M.D., under the standards contained in the Commissioner's regulations.
Under the EAJA, "a fee award is required if: (1) plaintiff is a `prevailing party'; (2) the position of the United States was not `substantially justified'; and (3) there are no special circumstances that make an award of fees unjust."
Defendant argues that her position was substantially justified because "the Magistrate Judge disregarded medical evidence of Plaintiff's physical and mental functioning from Drs. Salas and Barton and others the ALJ found that supported his decision in these regards." Dkt. # 29, at 4. Defendant then lists the medical evidence to which the ALJ cited in support of his RFC determination. Moreover, defendant argues that the magistrate judge "disregarded Dr. Barton's psychological examination the ALJ obtained to assess Plaintiff's mental functioning, specifically Dr. Barton's favorable mental functional findings . . . ."
Defendant also argues that her position was substantially justified because "neuropsychologic[al] testing may help identify functional deficits and predict social and psychologic prognosis." Dkt. # 29, at 5-6. In its opinion and order, the Court explained that the ALJ noted that Dr. Salas did not request a neuropsychological test. Based on this finding, the ALJ concluded that Dr. Salas relied heavily on the subjective report of symptoms and limitations provided by plaintiff. The Court noted that this was the ALJ's sole explanation for assigning "some, but not controlling weight" to Dr. Salas's opinions. The Court noted that normal findings on neurological examinations are not indicative of mental abilities; however, the Court explained that "[e]ven if normal findings on neurological examinations were indicative of mental abilities (which they are not), that would not justify the ALJ's decision to discount the vast majority of Dr. Salas' medical opinions without any reference to the requirements for weighing opinion evidence under § 404.1527(c) and Tenth Circuit precedent." Dkt. # 26, at 10-11. Therefore, defendant's position that neuropsychological testing may help identify functional deficits and predict social and psychological prognosis is irrelevant, because it has no bearing on the ALJ's failure to apply the proper legal standard in evaluating the doctors' opinions. Accordingly, the Court finds that defendant's litigation position was not substantially justified.
Finally, the Court found that certain justifications raised by defendant in her objection were not included in the ALJ's decision as justifications for the ALJ's treatment of the doctors' opinions. Defendant argues that her position is substantially justified because "even if the ALJ did not use the phrase `I find' in connection with his conclusions . . ., the form of words should not obscure the substance of what an ALJ actually did." Dkt. # 29, at 6. The Court does not find that defendant's position is reasonable, however, because there is nothing in the ALJ's decision to suggest that the ALJ relied on these justifications in evaluating the doctors' opinions. Moreover, defendant failed to address the second half of the Court's holding on this issue, which states that, "[i]n any case, even if the ALJ were to have provided such arguments as justifications for the weight assigned to the doctors' opinions, such justifications would not satisfy the requirements for evaluating opinion evidence under § 404.1527(c), especially because a treating source's medical opinion generally receives more weight than medical opinions from other sources. § 404.1527(c)." Dkt. # 26, at 12. The regulations clearly provide that "[g]enerally, [the ALJ] give[s] more weight to medical opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations." § 404.1527(c)(2). In addition, Tenth Circuit case law requires the ALJ to complete a two-step inquiry when evaluating a treating physician's opinion. Therefore, the Court does not find defendant's position to be reasonable, given the unique importance of treating source opinions under the regulations. Accordingly, the Court finds that defendant's litigation position was not substantially justified.
Defendant has not objected to the amount of EAJA fees requested by plaintiff's counsel. The Court has reviewed the hours and rate submitted by plaintiff's counsel and finds that the amount is reasonable. Further, if plaintiff's counsel is ultimately awarded attorney fees under 42 U.S.C. § 406(b), counsel must refund to plaintiff the smaller of the EAJA award or the § 406(b) award pursuant to