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Bailey v. Colvin

United States District Court, Ninth Circuit

December 31, 2013

LYLE BAILEY on behalf of Kacee Jo Pace, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, [1] Defendant.

MERRILL SCHNEIDER, Schneider Kerr Law Offices, Portland, OR, Attorneys for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, Portland, OR, DAVID MORADO, Regional Chief Counsel, CHRISTOPHER J. BRACKETT, Special Assistant United States Attorney Social Security Administration, Seattle, WA, Attorneys for Defendant.


ANNA J. BROWN, District Judge.

This matter comes before the Court on Plaintiff Kacee Jo Pace's[2] Motion (#23) for Attorneys' Fees in the amount of $4, 466.21 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (d).

For the following reasons, the Court GRANTS in part and DENIES in part Plaintiff's Motion and AWARDS attorneys' fees to Plaintiff in the amount of $4, 364.74.


On April 23, 2009 Plaintiff filed an application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. Plaintiff alleged she was disabled due to depression, anxiety, osteoarthritis of the left knee, and degenerative joint disease. Tr. 19. Plaintiff alleged a disability onset date of February 13, 2009. Tr. 105. On January 7, 2011, following a hearing, the ALJ issued a decision in which he found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 17-23.

On June 19, 2012, Plaintiff filed a Complaint (#1) in this Court seeking judicial review of the Commissioner's final decision. Plaintiff argued in her Opening Brief that the ALJ erred when he failed to follow Social Security Ruling (SSR) 00-4p, which provides the adjudicator "will ask' the vocational expert if the evidence he or she has provided' is consistent with the Dictionary of Occupational Titles and obtain a reasonable explanation for any apparent conflict." See Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007). Plaintiff asserted:

[T]he ALJ erred because the requirements of the occupations that the ALJ identified "exceeded the 1 to 2 step work' limitation in plaintiff's [RFC], and the [VE], who testified that plaintiff could perform the representative occupations, did not explain the variance." Specifically, Plaintiff contend[ed] because her RFC limited her to jobs involving simple 1-2 step instructions, she could only perform jobs at Reasoning Level 1.[3] The ALJ, however, failed to ask the VE whether his testimony that Plaintiff could perform jobs at Reasoning Level 2 conflicted with the DOT and to obtain an explanation for any such conflict.

On July 19, 2013, this Court concluded "the ALJ erred when he failed to ask the vocational expert (VE) whether his opinion was consistent with the DOT in light of medical evidence in the record that supports Plaintiff being limited to work involving simple and routine tasks' ( i.e., work at Reasoning Level 1 rather than Reasoning Level 2) and when he failed to obtain an explanation from the VE as to the conflict." Opin. and Order (#21) at 13. The Court also concluded the ALJ's failure was not harmless and, accordingly, reversed the Commissioner's decision and remanded this matter for further administrative proceedings "for the purpose of obtaining additional testimony from a VE." Id. at 14-15.

Plaintiff, as the prevailing party, subsequently filed his Motion (#23) for attorneys' fees pursuant to EAJA. Plaintiff seeks attorneys' fees in the amount of $4, 466.21, which includes fees for time spent preparing Plaintiffs EAJA application. The Commissioner opposes an award of fees on the ground that its litigation position was substantially justified. The Commissioner further contends even if the Court awards attorneys' fees to Plaintiff, the amount Plaintiff seeks is unreasonable and should be reduced.


An applicant for disability benefits prevails against the United States if the denial of benefits is reversed and remanded for rehearing pursuant to sentence four of 42 U.S.C. § 405(g) even if benefits are ultimately awarded. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993). A prevailing party in an action against the United States is entitled to an award of attorneys' fees and costs under EAJA unless the Commissioner demonstrates his position in the litigation was "substantially justified" or "special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). See also Corbin v. Apfel. 149 F.3d 1051, 1053 (9th Cir. 1998).

In an EAJA case the Commissioner bears the burden to demonstrate that her position was substantially justified even when the plaintiff is the prevailing party. Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005). "The test for whether the government [was] substantially justified is one of reasonableness." Id. at 618 (quoting League of Women Voters of Cal. v. FCC, 798 F.2d 1255, 1257 (9th Cir. 1986)). The Commissioner "must have a reasonable basis both in law and in fact." United States v. $100, 348.00 in U.S. Currency, 354 F.3d 1110, 1124 (9th Cir. 2004) (citing United States v. 2659 Roundhill Drive, 283 F.3d 1146, 1151 (9th Cir. 2002)). See also 28 U.S.C. § 2412(d)(1)(A)(2)(D). The Commissioner's position must be ...

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