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Elstun v. Commissioner Social Security Administration

United States District Court, D. Oregon

February 20, 2014

PENNY R. ELSTUN, Plaintiff,

MAX RAE, Salem, Oregon, Attorney for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, Portland, Oregon, GERALD J. HILL, Office of General Counsel Social Security Administration, Seattle, Washington, Attorneys for Defendant.


MALCOLM F. MARSH, District Judge.

Plaintiff seeks an award of attorney's fees in the amount of $12, 751.76 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d) (1)(A). The Commissioner objects to Plaintiff's attorney's fees application, arguing that an attorney's fees award is inappropriate because the Commissioner's litigation position was substantially justified and, in the alternative, the amount of fees requested is unreasonable. I find that the Commissioner's position was not substantially justified, but conclude that the requested fee award is unreasonable. Accordingly, Plaintiff's Application for Fees Pursuant to EAJA (#24) is granted in part and denied in part.


Plaintiff filed applications for supplemental security income (SSI) and disability insurance benefits (DIB) on October 3, 2007, which were denied initially and upon reconsideration. Plaintiff then protectively filed the applications for DIB and SSI at issue in this case on April 13, 2009, alleging disability due to "[l]ower back and both legs and mental health problems." Tr. 205. Her applications were again denied initially and upon reconsideration. A hearing was held before an Administrative Law Judge (ALJ) on June 9, 2011, at which Plaintiff was represented by counsel and testified. On August 19, 2011, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. After the Appeals Council declined review of the ALJ's decision, Plaintiff timely filed a complaint in this court.

Plaintiff raised eight independent substantive assignments of error in her appeal. The Court rejected seven of Plaintiff's eight arguments, but agreed with Plaintiff that the AIJJ erred in failing to properly explain her consideration of a disability determination by Vocational Rehabilitation Services (VRS). Accordingly, the Court concluded that remand was necessary to permit the Commissioner to evaluate the omitted VRS disability determination and consider its effect on the RFC.

Plaintiff, as the prevailing party, subsequently filed the present application for attorney's fees under the EAJA. The Commissioner opposes the award of fees, arguing that her position was substantially justified, and therefore Plaintiff is not entitled to fees under the EAJA. In the alternative, the Commissioner argues that Plaintiff's attorney's fees award should be reduced because the amount of fees sought is unreasonable.


I. Substantial Justification

Under the EAJA, a prevailing party is entitled to recover attorney's fees "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1) (A). "The test for whether the government is substantially justified is one of reasonableness." Gonzales v. Free Speech Coalition , 408 F.3d 613, 618 (9th Cir. 2005) (internal quotation omitted). The government's position need not be justified to a high degree, but to a degree that could satisfy a reasonable person. Pierce v. Underwood , 487 U.S. 552, 563-66 (1988); Bay Area Peace Navy v. United States , 914 F.2d 1224, 1230 (9th Cir. 1990). A position is substantially justified if it has a reasonable basis in law and fact. Pierce , 487 U.S. at 565; Hardisty v. Astrue , 592 F.3d'1072, 1079 (9th Cir. 2010), cert. denied, ___ U.S. ___, 131 S.C-t. 2443 (2011).

The question is not whether the government's position as to the merits of plaintiff's disability claim was "substantially justified." Shafer v. Astrue , 518 F.3d 1067, 1071 (9th Cir. 2008). Rather, the relevant question is whether the government's decision to defend the procedural errors on appeal was substantially justified. Id . The government bears the burden of demonstrating substantial justification. Kali v. Bowen , 854 F.2d 329, 332 (9th Cir. 1988).

SSR 06-03p provides that while disability determinations by other governmental agencies are not binding on the Commissioner, such determinations "cannot be ignored and must be considered, " and the ALJ "should explain the consideration given to these decisions" in the opinion. SSR 06-03p, available at 2006 WL 2329939, at *6*7. As I noted in the Opinion and Order, the AUJ "clearly erred in considering the VRS disability determination because she failed to explain the consideration it was given." Opinion and Order (#20) at 20. Moreover, such error-was plainly not harmless, as the VRS determination contained limitations that were not otherwise accounted for in the RFC. Id . ...

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