Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
AMOR AYALA,
Plaintiff,
vs. 	Civ. No. 24-1209 DHU/JFR
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
ON PLAINTIFF’S OPPOSED MOTION FOR ATTORNEY FEES
PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT 1
THIS MATTER is before the Court on Plaintiff’s Opposed Motion for Attorney Fees
Pursuant to the Equal Access to Justice Act (“Motion”), filed December 15, 2015. Doc. 27.
Defendant filed Objections (“Objections”) to the Plaintiff’s Motion on December 16, 2025.
Doc. 28. Plaintiff filed a Reply on January 21, 2026. Doc. 31. The Court, having reviewed the
parties’ submissions and the relevant law, and being otherwise fully advised, FINDS that
Defendant’s Objections are not well taken and recommends that Plaintiff’s Motion be
GRANTED.
In her Motion, Plaintiff seeks attorney fees pursuant to the Equal Access to Justice Act
(“EAJA”) in the amount of $11,565.00.2 Doc. 27 at 6. 	The EAJA provides that a fee award is
required if: (1) plaintiff is a “prevailing party”; (2) the position of the United States was not
1 On January 21, 2025, United States District Judge David H. Urias entered an Order of Reference referring this case
to the undersigned to conduct hearings, if warranted, including evidentiary hearings and to perform any legal analysis
required to recommend to the Court an ultimate disposition of the case. Doc. 9.
2 Plaintiff’s attorney avers he spent 45 hours providing professional services to Ms. Ayala in this matter at a rate of
$257.00 per hour. Doc. 27-1. The Commissioner does not contest the reasonableness of the hours billed or the
requested hourly rate. Plaintiff also states he will seek additional fees associated with briefing his litigation fees.
Doc. 27 at 6.
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“substantially justified”; and (3) there are no special circumstances that make an award of fees
unjust. Hackett v. Barnhart, 475 F.3d 1166, 1172 (10 th Cir. 2007) (citing 28 U.S.C.
§ 2412(d)(1)(A)). Here the dispute is whether the Commissioner’s position was substantially
justified and/or whether his harmless error argument was reasonable pursuant to a recognized
exception. “Position” refers to both the Commissioner’s position in the federal civil case and the
agency’s actions at the administrative level. 28 U.S.C. § 2412(d)(2)(D); see also Hackett, 475
F.3d at 1170 (finding that government must justify both its position in any underlying
administrative proceedings and in any subsequent court litigation).
The Commissioner bears the burden of proving that its position was substantially
justified. Kemp v. Bowen, 822 F.3d 966, 967 (10 th Cir. 1987). 	The test for substantial
justification is one of reasonableness in law and fact. Gilbert v. Shalala, 45 F.3d 1391, 1394
(10th Cir. 1995). The government’s position must be “justified in substance or in the main – that
is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 US.
552, 565, 108 S. Ct. 2541, 101 L.Ed.2d 490 (1988). The government’s “position can be justified
even though it is not correct.” Hackett, 475 F.3d at 1172 (quoting Pierce, 487 U.S. at 565.) A
lack of substantial evidence on the merits does not necessarily mean that the government’s
position was not substantially justified. Hadden v. Bowen, 851 F.2d 1266, 1269 (10 th Cir. 1988).
The Court is required to view the case as a whole. See Hackett, 475 F.3d at 1173, n. 1
(concluding that the Commissioner’s position in the case was not “substantially justified” and
that an EAJA fee was appropriate even though the Commissioner prevailed on five of six issues
presented in district court, but where plaintiff obtained remand based on a single discrete issue
that resulted in the unreasonable denial of benefits and the other issues did not provide a basis to
affirm the ALJ’s decision).
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Plaintiff raised two arguments for judicial review of the Commissioner’s final decision
denying her supplemental security income application.3 Following a meticulous review of the
entire record, the Court found that the ALJ erred in failing to resolve an apparent conflict
between the DOT and the VE’s testimony. Doc. 25 at 2-3, 6-14. The Court further found that
the ALJ’s determination as to the number of national jobs available to Plaintiff was not
supported by substantial evidence. Id. Finally, the Court found that it was constrained on
harmless error review from finding as a matter of law that 50,000 jobs in the national economy
constitutes a significant number. Id. The Court, therefore, recommended remand. Id.
There being no objections filed, the Court entered an Order Adopting Magistrate Judge’s
Proposed Findings and Recommended Disposition and this matter was remanded to the Social
Security Administration. Doc. 25.
Plaintiff argues that it is undisputed that the ALJ is required to resolve inconsistencies
between the DOT and the VE’s testimony and that the ALJ failed to do so here constituting legal
error. Id. at 4. Plaintiff further argues that it is undisputed that the ALJ did not consider in the
first instance whether 50,000 jobs in the national economy was a significant number such that the
ALJ’s decision that Ms. Ayala is not disabled cannot be supported by substantial evidence. Id.
In opposing Plaintiff’s Motion for an award of EAJA attorney fees, the Commissioner, on
the one hand, argues that its position was substantially justified, while, on the other hand, asks
the Courts to recognize an exception when the government advances a reasonable litigation
position, in this case harmless error, that “cure[s] unreasonable agency action.” Doc. 28 at 3-7
3 Ms. Ayala argued (1) that the ALJ failed to resolve a significant discrepancy between the Dictionary of Occupational
Titles and the VE’s testimony and failed to apply the Trimiar factors to determine whether other work within Plaintiff’s
restrictions arises in significant numbers; and (2) that the ALJ failed to meaningfully consider the impact of
Ms. Ayala’s obesity on her mental impairments. Doc. 17 at 20-28.
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(citing Evans v. Colvin, 640 F. App’x 731, 733 (10 th Cir. 2016) (unpublished)).4 	The
Commissioner asserts that the legal issue regarding what number of jobs can be found to be
significant and the application of harmless error is in flux. Id. The Commissioner reasserts his
position that Tenth Circuit precedent and multiple districts within the Tenth Circuit have
“adopted such an interpretation and [] found numbers of jobs less than the 50,000 remaining in
this case was substantial as a matter of law for harmless error purposes.” Id. The Commissioner
asserts that while this Court’s harmless error interpretation that it should not supply a missing
dispositive finding which should be found by the ALJ is reasonable, the Commissioner’s
harmless error position was nonetheless also reasonable in light of the divergent Tenth Circuit
and district court decisions on an unresolved issue. In sum, the Commissioner asserts that his
harmless error position has legal support and thus is substantially justified.
In Reply, Plaintiff argues that the Commissioner does not show that its positions were
substantially justified. Doc. 31 at 2. Plaintiff argues that despite binding Tenth Circuit case law
and numerous decisions from this District holding that the DOT definition of document preparer
is inconsistent with an RFC limiting a claimant to simple routine tasks, the Administration
defiantly, and with regularity, continues to assert there is no conflict. Id. at 9-10. Plaintiff
argues that the Commissioner then attempts to convince the Court that even if there is a conflict
that courts in other districts have held that less than 50,000 jobs is significant under a harmless
error analysis such that EAJA fees should not be awarded. Id. at 2. Plaintiff argues that the
Commissioner’s position conflates the rigorous harmless error standard with substantial
4 The general rule is that EAJA fees “should be awarded where the government’s underlying action was unreasonable
even if the government advanced a reasonable litigation position.” Evans, 640 F. App’x at 733 (citing Hackett v.
Barnhart, 475 F.3d 1166, 1174 (10 th Cir. 2007)). An exception has been recognized, however, when the government
advances a reasonable litigation position that “cure[s] unreasonable agency action,” and this exception can be applied
when the Commission argues harmless error in the social security context. Id. (citing Groberg v. Astrue, 505 F. App’x
763, 765-66 (10 th Cir. 2012)).
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justification and implicitly attempts to reframe the harmless error inquiry as one of
reasonableness, which is not the law. Id. Plaintiff argues that the Commissioner’s litigation
position rested on an incorrect legal standard, ignored controlling authority, and sought
affirmance on grounds expressly rejected by this Court. Id. at 12. Plaintiff argues there was
clear error in this case for which Plaintiff should not be required to bear the cost of correcting it.
Id.
As noted above, the Commissioner bears the burden of proving that his position was
substantially justified. Hackett, 475 F.3d at 1172. To begin, the Commissioner has not
addressed at all whether his litigation position was legally and factually reasonable with respect
to the error on which this case turned, i.e., the ALJ’s failure to resolve the apparent conflict
between the DOT and the VE’s testimony at the administrative hearing.5 Instead, the
Commissioner reasserts its alternative position that the ALJ’s error, if any, was harmless because
even excluding the job of document preparer the remaining 50,000 jobs has been deemed
significant as a matter of law by other courts such that the ALJ’s determination of not disabled is
supported by substantial evidence.
Harmless error applies if “no reasonable administrative factfinder, following the correct
analysis, could have resolved the factual matter in any other way.” Allen v. Barnhart, 357 F.3d
1140, 1145 (10th Cir. 2004) (emphasis added). In this context, a harmless error analysis asks
whether, after striking the job of document preparer, the number of jobs identified in the other
two positions are still so numerous that a reasonable factfinder would be compelled to find that
they exist in significant numbers in the national economy. Id.; Raymond v. Astrue, 621 F.3d
1269 (10 th Cir. 2009).
5 In opposing remand, the Commissioner argued that based on GED reasoning levels, no conflict existed between a
reasoning level of three and simple work. Doc. 21 at 7-12.
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In Allen, the Tenth Circuit warned that a harmless-error determination, i.e., “deciding in
the first instance that a particular number was significant under the circumstances,” is different
than cases which “involved court review of a finding of numerical significance made by the
ALJ.” 357 F.3d at 1144. That is, instead of conducting a substantial evidence review, a court
performing a harmless error analysis is essentially “supply[ing] a missing dispositive finding.”
Allen, 357 F.3d at 1140. “[J]udicial line-drawing in this context is inappropriate.” Id. “[T]he
issue of numerical significant entails many fact-specific considerations requiring individualized
evaluation, and . . . the evaluation should ultimately be left to the ALJ’s common sense in
weighing the statutory language as applied to a particular claimant’s factual situation.” Id.
(internal quotation marks omitted). Indeed, the Court noted that in this case there are factors in
in which the Court could foresee that a rational factfinder could conclude that 50,000 is not
significant. See Doc. 24 at 14.
Here, once the erroneous job is subtracted from the total number of jobs the ALJ found
“significant” in this case, the number of jobs drops from 65,000 to 50,000. Under a harmless
error analysis, the relevant question is not whether this factfinder would resolve the matter the
same way, instead the relevant question is whether no reasonable factfinder could resolve the
matter in any other way. 	Allen, 357 F.3d at 1145. In determining whether the remaining
number of jobs is enough, the Tenth Circuit does not ask how the starting number of jobs
compares to the remaining number of jobs. Instead, the Tenth Circuit looks at the number of
remaining jobs and ask if, for the types of jobs remaining, all reasonable factfinders would be
compelled to conclude that their numbers are significant in the national economy.
Importantly, the number at issue here, 50,000 jobs, is well short of the number of jobs the
Tenth Circuit, in its only published guidance, says all reasonable factfinders would find to be a
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significant number – 1.34 million jobs. Raymond, 621 F.3d at 1274.6 And 50,000 jobs is a third
of the number of jobs deemed significant in the unpublished case of Stokes v. Astrue, which held
that 152,000 jobs in the national economy is significant as a matter of law. 274 F. App’x 675,
684 (10 th Cir. 2008). Additionally, as explained by the Court, the cases from other districts
relied upon by the Commissioner rely primarily on Rogers v. Astrue, 312 F. App’x 138, 142 (10 th
Cir. 2009) (unpublished), in which the court implied that 11,000 nationally available jobs was a
significant number. See Doc. 24 at 12, fn. 9. In Rogers, however, the Tenth Circuit did not
address the issue of significance nor did it apply a harmless error standard of review. Id.; see
also Evans, 640 F. App’x at 735 (noting that in Rogers the figure of 11,000 jobs was stated in
dictum and harmless error was not at issue). The Court, therefore, found the cases the
Commissioner cited and upon which he relied were unpersuasive.7
Last, the Commissioner’s reliance on Evans to support that he was substantially justified
to argue harmless error here is misplaced. Doc. 28 at 3-4. In Evans, the court considered
whether it was harmless error when some but not all of the jobs identified by the ALJ have
6 The Tenth Circuit did not resolve whether the ALJ erroneously relied on VE testimony that claimant was physically
able to work as a “sales attendance” or an “office helper,” because there was no colorable dispute that claimant could
work as a rental clerk and it was undisputed that there were 1.34 million rental clerk jobs available in the national
economy. 621 F.3d at 1273-75. Claimant did not dispute that 1.34 million rental clerk jobs in the national economy
is a legally “significant” number. Id.
The Commissioner relies on Raymond as Tenth Circuit precedent to argue his position that the ALJ’s error, if any, is
harmless because the two remaining jobs here constitute a significant number of jobs. Doc. 28 at 3. The Tenth Circuit,
however, did not address or apply a harmless error analysis in Raymond. Moreover, as noted above, it was undisputed
in Raymond everyone agreed, even the claimant, that 1.34 million rental clerk jobs in the national economy is a legally
“significant” number. 621 F.2d at 1247.
7 The Commissioner states that “as the Court noted in its remand order, there was a division among courts as to how
to interpret Tenth Circuit precedent as to what number of jobs could be found significant under a harmless error
argument.” Doc. 28 at 1. This statement mischaracterizes the Court’s PFRD recommending remand. Indeed, the
Court cited the Tenth Circuit’s guiding principles (Doc. 24 at 11-12), noted and discussed the case law cited by the
Commissioner (id. at 12, fn. 9), and then explicitly stated that holdings by jurists in this District (id. at 12-14). The
Court did not, as the Commissioner seeks to imply, acknowledge or posture its discussion to suggest that the case law
is in flux such that this issue could be decided either way under a harmless error analysis or that the Commissioner’s
argument was reasonable.
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requirements that exceed the claimant's RFC. 640 F. App’x at 736. The court concluded that
conflicting authority on this point rendered defendant's position substantially justified. Id. at
736-37. That is not the case here, however, where the Commissioner took the position that there
was no error in the ALJ’s failure to resolve the conflict between the DOT and the VE’s
testimony and only in the alternative urged the Court to find harmless error. As previously
noted, the Commissioner has not addressed at all whether his litigation position was legally and
factually reasonable with respect to the ALJ’s error in the first instance. Nor has the
Commissioner addressed how his harmless error position was substantially justified or
reasonable under the exception given the absence of published case law to support his position,
the legal standard prescribed in Allen for applying harmless error, and knowing that jurists in this
District have been unwilling to make a sweeping pronouncement that 50,000 national jobs, and
even higher job numbers, are significant under a harmless error review. Doc. 24 at 12-13 (citing
cases). See Lashawnda N. J. v. Kijakazi, 2021 WL 9639635, at *3 (N.D. Okla. Sept. 30, 2021)
(noting that the exception applies only if the Commissioner’s harmless error assertion was
reasonable).
For the foregoing reasons, the Court finds the Commissioner’s position as a whole was not
substantially justified and that his harmless error assertion was not reasonable under the applicable
exception.
RECOMMENDATION
For all of the reasons stated above, the Court finds that Ms. Ayala’s Motion is well taken.
The Court, therefore, recommends that the Motion be GRANTED and that Plaintiff be awarded
$11,565.00 in attorney fees pursuant to the EAJA.
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The Court further recommends Plaintiff’s request for additional EAJA fees in the amount
of $3,777.90 related to compensation for fee litigation be GRANTED. See Comm'r, INS v.
Jean, 496 U.S. 154, 161 (1990) (a fee award under the EAJA may include compensation for all
aspects of the action, including compensation for fee litigation).8
THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of
these Proposed Findings and Recommended Disposition they may file written objections with
the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any
objections with the Clerk of the District Court within the fourteen-day period if that party
wants to have appellate review of the proposed findings and recommended disposition. If
no objections are filed, no appellate review will be allowed.
_____________________________________
JOHN F. ROBBENHAAR
United States Magistrate Judge
8 Plaintiff stated in her Motion that she would be seeking additional fees related to litigating the EAJA award. Doc.
27 at 6. The Commissioner did not address or respond to this directly but argued broadly that the Court deny Plaintiff’s
request for an EAJA award. Doc. 28 at 8.
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