Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HOLLY JEAN CONWAY GOMEZ,
Plaintiff,
v. 	No. 1:24-cv-0926 DLM
FRANK BISIGNANO,
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Holly Jean Conway Gomez’s Motion for
Award of Attorney Fees Pursuant to the Equal Access to Justice Act (EAJA). (Doc. 21.) The
Commissioner 	opposes 	an 	award 	of 	EAJA 	fees 	and 	argues 	that 	the 	Social 	Security
Administration’s position was substantially justified. (Doc. 22.) Having reviewed the briefs and
the relevant law, the Court finds the motion should be GRANTED in part.
I. 	Background
Ms. Holly Jean Conway Gomez protectively filed her applications for Title XVI
Supplemental Security Income and Title II Disability Insurance Benefits with the Social Security
Administration 	on 	October 	21, 	2021, 	alleging 	disability 	beginning 	September 	2, 	2021.
(Administrative Record1 (AR) at 244–65.) The Administration denied her applications initially
and upon reconsideration. (Id. at 120–60) Gomez timely requested a hearing with an administrative
law judge (ALJ). (Id. at 162–67.) Gomez and a vocational expert (VE) testified at the hearing. (See
id. at 40–63.) On March 4, 2024, ALJ Matthew Allen issued an unfavorable decision. (Id. at 14–
39.) Gomez sought Appeals Council review on May 8, 2024 (id. at 241–43), which the Council
1 Document 11 contains the sealed Administrative Record. The Court cites the Administrative Record’s internal
pagination, rather than the CM/ECF document number and page.
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denied on August 1, 2024 (id. at 1–6).
Gomez filed suit in this Court on September 17, 2024. (Doc. 1.) On May 30, 2025, the
Court issued a Memorandum Opinion and Order reversing and remanding the Commissioner’s
decision based on the ALJ’s failure to evaluate the supportability factor when assessing the
medical opinion rendered by consulting psychologist Shari Spies, Psy.D. (Doc. 19.)
Gomez now seeks attorney’s fees pursuant to the EAJA, 28 U.S.C. § 2412(d). (Doc. 21.)
She argues that an award of fees is appropriate because she is the prevailing party, and the
Commissioner’s position in defending the action was not substantially justified. (See id. at 9–12.)
Gomez requests $8,406.02 for 33.3 hours of attorney time at a rate of $251.25 (and $260.00) per
hour, and $420.00 for 3.5 hours of paralegal time at a rate of $120.00 per hour, for a total EAJA
fee award of $8,826.02. (See Doc. 23-1 at 2.)
The Commissioner responds that Gomez’s request for fees under the EAJA should be
denied because the Commissioner’s position in this case was substantially justified. (See Doc. 22.)
II. 	Legal Standard
A court is required to award attorney’s fees under the EAJA 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.” Hackett v. Barnhart, 475 F.3d 1166,
1172 (10th Cir. 2007) (citing 28 U.S.C. § 2412(d)(1)(A)). Only the second factor is at issue here.
The Commissioner bears the burden to establish that his position was substantially justified. See
id. (citing Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995)). To be substantially justified,
the Commissioner must demonstrate that his position was reasonable in law and fact; in other
words, “justified to a degree that could satisfy a reasonable person.” Id. (citing Gilbert, 45 F.3d at
1394) 	(quoting 	Pierce 	v. 	Underwood, 	487 	U.S. 	552, 	565 	(1988)); 	see 	also 	28 	U.S.C.
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§ 2412(d)(2)(D). “The government’s position can be [substantially] justified . . . even though it is
not correct.” Madron v. Astrue, 646 F.3d 1255, 1257 (10th Cir. 2011) (citing Hackett, 475 F.3d at
1172).
Generally, a claimant will receive EAJA fees “where the government’s underlying action
was unreasonable even if the government advanced a reasonable litigation position.” Evans v.
Colvin, 640 F. App’x 731, 733 (10th Cir. 2016) (quoting Hackett, 475 F.3d at 1174). The Tenth
Circuit has “recognized an exception when the government advances a reasonable litigation
position that ‘cure[s] unreasonable agency action.’” Id. (quoting Hackett, 475 F.3d at 1173–74).
“In the social security context, [the Tenth Circuit has] interpreted that exception to include ‘when
the Commissioner reasonably (even if unsuccessfully) argues in litigation that the ALJ’s errors
were harmless.’” Id. (citing Groberg v. Astrue, 505 F. App’x 763, 765–66 (10th Cir. 2012)).
If the Court awards attorney’s fees, the burden falls on the party requesting fees to establish
the reasonableness of both the hourly rate and the number of hours worked. See Hensley v.
Eckerhart, 461 U.S. 424, 437 (1983). “Ultimately, the amount of the attorney’s fees to be awarded
is a decision that lies within the Court’s discretion.” Roxanne C. v. Colvin, No. 2:23-cv-0233
GBW, 2025 WL 89295, at *2 (D.N.M. Jan. 14, 2025) (citing Pierce, 487 U.S. at 571).
III. 	Discussion
Gomez raised two issues in her motion to remand: (1) the ALJ failed to properly evaluate
the opinion of consulting psychologist Shari Spies, Psy.D.; and (2) the ALJ’s evaluation of
Gomez’s ability to sustain concentration, persistence, and pace was not supported by substantial
evidence. (See Doc. 12-2 at 7.) The Court considered only the first argument and remanded because
the ALJ committed legal error by failing to assess the supportability of Dr. Spies’ opinion. (See
Doc. 19.) The Commissioner now opposes an award of EAJA fees on the basis that his position
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was substantially justified. (See Doc. 22.) The Court disagrees.
A. 	The Commissioner’s position was not substantially justified.
The ALJ’s failure to evaluate the supportability factor when assessing Dr. Spies’ opinion
was a clear legal error, not a mere articulation defect, and the Commissioner’s defense of that
omission lacked a reasonable foundation. Under the applicable regulations, the ALJ must evaluate
every medical opinion and prior administrative finding for both supportability and consistency and
must articulate findings on each. See 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2). Although the
regulations provide the ALJ with discretion in how to articulate these findings, they provide “no
leeway as to whether [he] articulates such findings.” Saiz v. Kijakazi, No. 1:21-cv-0681 KRS, 2022
WL 4235325, at *4 (D.N.M. Sept. 14, 2022) (citing 20 C.F.R. § 416.920c(b)).
In its remand order, the Court found that the ALJ entirely omitted any supportability
analysis of Dr. Spies’ opinion and provided no explicit or implicit reasoning connecting Spies’
examination findings to his conclusion that her opinion was unpersuasive. (See Doc. 19 at 8–10.)
This omission prevented meaningful review and required remand. See Jensen v. Barnhart, 436
F.3d 1163, 1165 (10th Cir. 2005) (explaining that failure to apply the correct legal standard is
grounds for reversal). The ALJ’s error was legal—not merely a matter of imperfect drafting. The
Tenth Circuit has repeatedly held that when an ALJ fails to apply a required legal standard, the
Commissioner cannot show substantial justification. See, e.g., Chester v. Apfel, 1 F. App’x 792,
794–95 (10th Cir. 2001) (Commissioner not substantially justified where ALJ committed “glaring
legal error” by omitting a required analysis); Hackett, 475 F.3d at 1174 (explaining “that EAJA
‘fees generally should be awarded where the government’s underlying action was unreasonable
even if the government advanced a reasonable litigation position”) (quotation omitted).
The Commissioner argues that because the Court found the ALJ’s consistency analysis of
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Spies’ opinion was supported by substantial evidence, it “would arguably have been proper” to
affirm the decision despite the ALJ’s legal error. (See Doc. 22 at 4.) Essentially, the Commissioner
argues that the ALJ’s legal error was harmless. The Court disagrees. While the Court found “the
ALJ’s consistency assessment is adequately supported by substantial record evidence,” the Court
did not find that the consistency analysis—by itself—was adequate to uphold the RFC
determination. (See Doc. 19 at 10.) The Court finds support in Dominguez v. Colvin, in which the
court held the Commissioner’s position was not substantially justified where “the ALJ completely
omitted the second half of the treating physician analysis from the decision.” No. 2:14-cv-0626
CG, 2015 WL 13650127, at *3–4 (D.N.M. Nov. 30, 2015) (citing, e.g., Groberg v. Astrue, No. 11-
4173, 505 F. App’x 763, 768–69 (10th Cir. Dec. 14, 2012) (upholding district court’s finding that
Commissioner’s position in favor of the ALJ’s decision was not substantially justified when ALJ
rejected medical opinions for unsupportable reasons)). Similarly, here, where the ALJ failed to
discuss a required factor in evaluating a medical opinion, the Commissioner’s position in support
is not substantially justified.
The Commissioner next argues that his decision was substantially justified because, despite
the ALJ’s failure to provide a supportability evaluation, “Dr. Spies presented no supporting
explanations” in support of her opinion. (See Doc. 22 at 6.) “A reasonable mind could conclude[,]”
argues the Commissioner, that “Dr. Spies’ opinion of ‘marked’ limitations . . . was unsupported.”
(Id. at 7.) As United States Magistrate Judge Steven Yarbrough explained in Torrence v. Saul,
“[h]armless error only exists if no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter any other way.” No. 1:18-cv-0934 SCY, 2020 WL
4698502, at *3 (D.N.M. Aug. 13, 2020). Here, as in Torrence, the Commissioner argues that a
reasonable factfinder adhering to the correct standards could conclude that the ALJ’s RFC
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determination was correct. See id. (See also Doc. 22 at 6.) This is not the correct standard, and the
Commissioner fails to demonstrate that his position was substantially justified.
The Commissioner also contends that his position was reasonable based on a reading of
the ALJ’s decision as a whole, because the ALJ discussed some of “Dr. Spies’ examination
findings earlier in his decision.” (See Doc. 22 at 9 (citing Doc. 12).) Yet the Court rejected this
argument in its remand order, explaining that the ALJ’s earlier discussion of Dr. Spies’
examination findings did not constitute a supportability analysis and that the ALJ’s reasoning
could not be reasonably discerned from the decision. (See Doc. 19 at 8–10.) Notably, the ALJ did
not comment on Spies’ considerable discussion of Gomez’s self-reported history and symptoms
or on her diagnostic impressions. (See AR at 591–92.) Consequently, this case is distinguishable
from Hays v. Berryhill, 694 F. App’x 634 (10th Cir. 2017), and Thomas v. Astrue, 475 F. App’x
296 (10th Cir. 2012), which the Commissioner relies on for support. (See Doc. 22 at 6, 8–9, 11.)
In short, the Commissioner’s position in this litigation largely amounts to a post hoc
rationalization—an attempt to supply reasoning the ALJ himself did not provide. The Tenth Circuit
has long prohibited such arguments. See Haga v. Astrue, 482 F.3d 1205, 1207–08 (10th Cir. 2007);
Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005). Defending an ALJ’s failure to perform
a required analysis by asserting that the omitted reasoning can be inferred from other portions of
the decision is insufficient to show substantial justification. See Romero v. Colvin, No. 1:14-cv-
774 CG, 2016 WL 10592161, at *4–5 (D.N.M. Feb. 10, 2016) (rejecting the Commissioner’s
attempt to “discern the ALJ’s reasoning” as post-hoc rationalization and finding no substantial
justification for defending the ALJ’s omission); see also Dominguez, 2015 WL 13650127, at *3–
4. The Court declines to find that the Commissioner’s position was substantially justified.
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B. 	The requested EAJA fee award rate is reasonable.
Once the Court determines “that the government’s position was not substantially justified,
then the [C]ourt should determine what fee is merited for all aspects of the litigation that deal with
creating a benefit to the claimant.” Gallaway v. Astrue, 297 F. App’x 807, 809 (10th Cir. 2008)
(citation omitted). Notably, the Commissioner did not raise specific objections to the fee
calculation or total fee request. (See Doc. 22.) Still, the Court must review the reasonableness of
the fee request. See D.M.C. v. Kijakazi, No. 21-1276 DDC, 2022 WL 2663991, at *2 (D. Kan. July
11, 2022) (citing Hensley, 461 U.S. at 433–34).
The Court will award a reasonable hourly rate for all hours reasonably expended, and
Gomez has the burden to establish an entitlement to the award. See Villalobos v. Colvin, No. 1:15-
cv-0463 CG, 2016 WL 10179289, at *2 (D.N.M. July 12, 2016) (citing Hensley, 461 U.S. at 433).
Here, Gomez seeks $8,826.02 in attorney’s fees for 36.8 hours of work. (See Doc. 23-1 at 2.) The
Court will grant the request in part.
The timesheet submitted reflects that Gomez is claiming fees for 33.3 hours of work
performed by her attorneys, and 3.5 hours of work performed by a paralegal. (See id.) The
description of the work performed by the paralegal includes: preparing the motion to proceed in
forma pauperis (IFP) (1.5 hours), preparing the complaint and civil coversheet (1.5 hours), and
adjusting timesheets (.5 hours). (See id.) A portion of this work is purely clerical, and “clerical
work and overhead expenses are not compensable” under the EAJA. See Villalobos, 2016 WL
10179289, at *2 (citing 28 U.S.C. § 2412(d)(1)(A); Montoya v. Colvin, No. 1:14-cv-0836
LH/SMV, at *3 (D.N.M. Dec. 16, 2015), R&R adopted, 2016 WL 10592306 (D.N.M. Jan. 11,
2016)) (subsequent citations omitted). The Court will exercise its discretion to reduce the claimed
paralegal work by 2.5 hours, as Gomez’s attorneys “cannot be compensated for preparing an [IFP]
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application, preparing a civil action cover sheet,” or adjusting timesheets. See Villalobos, 2016
WL 10179289, at *2. Accordingly, Gomez may claim 1.0 hour of paralegal work.
Additionally, of the work performed by her attorneys, one line mentions that the attorney
“prepare[d] and file[d] EAJA Motion.” (See Doc. 23-1 at 2.) “‘[T]he filing of pleadings is
considered clerical work’ and therefore is not compensable under the EAJA.” Villalobos, 2016
WL 10179289, at *2 (quoting Dalles Irrigation Dist. v. United States, 91 Fed. Cl. 689, 708 (2010)).
The Court will thus reduce the 1.5 hours claimed there to 1.0 hour, for a total of 32.3 hours of work
performed by her attorneys. Given that the typical social security appeal in this district averages
20 to 40 hours, the Court finds this is reasonable. See Griego v. Colvin, No. 2:15-cv-0555 SMV,
2016 WL 9777356, at *4 (D.N.M. Sept. 30, 2016) (gathering cases).
Finally, Gomez seeks to use an hourly rate based on the consumer price index (CPI) All
Items Index for New York and New Jersey (NY/NJ) and relies on a nonbinding case in support.
(See Doc. 21 at 16 (citing Mannino v. West, 12 Vet. App. 242 (Vet. App. 1999)).) See also
Consumer Price Index for All Urban Consumers, New York-Newark-Jersey City, U.S. Bureau of
Labor Statistics, available at https://data.bls.gov/pdq/SurveyOutputServlet2 (data extracted on Feb.
26, 2026). The Court is unconvinced that it is appropriate to use the CPI Index for the NY/NJ
region. See, e.g., Southern v. Kijakazi, No. 21-cv-2053 JWB, 2021 WL 5493073, at *2 (D. Kan.
Nov. 23, 2021) (noting that courts in the District of Kansas “routinely use the Midwest Region to
2 This link does not direct the reader to the relevant data. To find the data for any region or local area, visit
https://data.bls.gov/. In the “Data Tools” dropdown, look for the “Customized Tables” heading and click on “Regions,
States & Areas at a Glance.” One may then click on a region (West, Midwest, South, Northeast) or a state and may
further narrow the search from those results.
For example, to find the CPI Index for the NY/NJ region, click on New Jersey from the United States map, select the
“Newark, 	NJ” 	area 	from 	the 	New 	Jersey 	list 	located 	at 	this 	link: 	https://www.bls.gov/regions/mid-
atlantic/new_jersey.htm#eag, then click on the link under the “Back Data” column for the line marked “CPI-U, All
items.” Similarly, to find the CPI Index for the West region , click on West from the United States map, then click on
the link under the “Back Data” column for the line marked “CPI-U, All items.”
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calculate the cost of living adjustment”) (citing Barnett v. Saul, No. 19-cv-2675 JWL, 2020 WL
7388611, at *3 (D. Kan. Dec. 16, 2020)); Taylor v. Colvin, No. 13-cv-03152-CMA, 2015 WL
2375907, at *3 (D. Colo. May 15, 2015) (noting that courts in the District of Colorado use the CPI-
U West Urban index; Wood v. Kijakazi, No. 3:22-cv-067 RP, 2023 WL 187502, at *2 (N.D. Miss.
Jan. 13, 2023) (finding Mannino inapposite and holding that “[a]bsent some indication that the
plaintiff needed to look outside the district to find representation, . . . the locality payrate for this
district should be used in determining an award of attorney’s fees under the EAJA”).
The Court finds, however, that the difference in fees using the CPI Index for the NY/NJ
region as compared to the rate normally used in this district is nominal. See, e.g., D.M.C., 2022
WL 2663991, at *2. Consequently, and because the Commissioner did not object to Gomez’s use
of the index, the Court will use the CPI Index for the NY/NJ region for purposes of calculating the
EAJA award here.
Gomez calculates the hourly rate as follows:
$334.78 (June 2024 NY/NJ CPI rate) / $166.50 (March 1996 NY/NJ CPI rate) = 2.01
2.01 x $125.00 (1996 EAJA rate3) = $251.25/hour
(Doc. 21 at 3.) It is unclear why Gomez uses June 2024, since her attorneys began work on this
case in September 2024. (See Doc. 23-1 at 2.) Additionally, Gomez includes no discussion to
explain why she uses a different hourly rate for the two line items performed in 2025, but the Court
has deduced that she used the July 2025 NY/NJ CPI rate for the calculation on those two items:
$346.39 (July 2025 NY/NJ CPI rate) / $166.50 (March 1996 NY/NJ CPI rate) = 2.08
2.08 x $125.00 (1996 EAJA rate) = $260.00/hour
(See Doc. 23-1 at 2.)
3 The statutory amount for the hourly fee was set in March 1996. See Maldonado v. Apfel, No. 1:95-cv-0221 JP/WWD,
2000 WL 36739498, at *2 n.4 (D.N.M. Dec. 27, 2000) (citing Pub. L. 104-121, 232(b)(1) (amending 28 U.S.C.
§ 2412(d)(2)(A)).
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Rather than use one number or the other, the Court will use an average of the rates
calculated from September 2024 (the month Gomez’s attorneys accepted the case) and August
2025 (the month Gomez filed her reply brief for this motion). See Barnett, 2020 WL 7388611, at
*3. The Court’s calculations for the NY/NJ CPI rate are as follows:
$337.89 (Sept. 2024 NY/NJ CPI rate) / $166.50 (March 1996 NY/NJ CPI rate) = 2.03
2.03 x $125.00 (1996 EAJA rate) = $253.75/hour
$347.27 (Aug. 2025 NY/NJ CPI rate) / $166.50 (March 1996 NY/NJ CPI rate) = 2.09
2.09 x $125.00 (1996 EAJA rate) = $261.25/hour
Average: $253.75 + $261.25 = $515.00
$515.00 / 2 = $257.50/hour
The total EAJA award is:
$257.50 x 32.3 hours = $8,317.25
$120.00 x 1 hour = $120.00
Total award: $8,437.25
The Court will, therefore, grant Gomez’s motion for EAJA fees in part and will award $8,437.25
in EAJA fees.
Finally, although Gomez’s attorney asks that the fee be paid to his firm “directly, ‘the clear
language of the [EAJA] provides that attorney’s fees are paid to the prevailing party, not the
attorney.’” Taylor, 2015 WL 2375907, at *3 (quoting Manning v. Astrue, 510 F.3d 1246, 1254
(10th Cir. 2007)) (subsequent citation omitted).
IT IS THEREFORE ORDERED that Gomez’s Motion for Award of Attorney Fees
Pursuant to the Equal Access to Justice Act (Doc. 21) is GRANTED in part. Under 28 U.S.C.
§ 2412, Gomez is granted attorney’s fees in the amount of $8,437.25. The fees must be paid to
Gomez, not to her attorneys directly, but must be mailed to her attorneys at the address of their
firm.
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IT IS FURTHER ORDERED that if Gomez’s counsel receives attorney’s fees under both
the EAJA and 42 U.S.C. § 406(b) of the Social Security Act, counsel shall refund the smaller
award to Gomez pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
IT IS FURTHER ORDERED that the Motion for Order on Pending Attorney’s Fees
(Doc. 24) is DENIED as moot.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
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