United States District Court, D. Oregon, Portland Division
DEBORAH J. CANTRELL, Plaintiff,
COMMISSIONER of Social Security, Defendant.
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Deborah J. Cantrell ("Cantrell") filed this action under 42 U.S.C. § 405(g) of the Social Security Act (the "Act") to review the final decision of the Commissioner of Social Security (the "Commissioner") who denied her social security disability insurance and supplemental security income benefits ("Benefits"). This court affirmed the Commissioner's ruling on March 22, 2012. On October 23, 2013, the Ninth Circuit vacated this court's decision and remanded the action to the Commissioner for reconsideration. Cantrell now moves for an award of attorney fees in the amount of $14, 546.09 under the Equal Access to Justice Act (28 U.S.C. § 2412)("EAJA"). The Commissioner opposes Cantrell's request for fees on the ground his position was substantially justified. For the reasons set forth below, the court finds the Commissioner's position was not substantially justified and awards Cantrell EAJA fees in the amount of $14, 546.09.
On January 31, 2006, Cantrell filed applications for Benefits with an onset date of April 20, 2005,  alleging disability based on degenerative disc disease, bulging discs, bursitis, sciatic nerve problems, tendonitis, carpal tunnel syndrome, chronic sinusitis, irritable bowl syndrome, chronic fatigue, fibromyalgia, chronic myofacial pain, bipolar disorder, depression, osteoarthritis, gastroesophageal reflux disease, diabetes, chronic migraines, high cholesterol, asthma, and chronic bronchitis. These applications were denied initially, upon reconsideration, and by Administrative Law Judge Jean Kingrey ("ALJ") after a hearing.
In a decision dated March 27, 2008, the ALJ found that Cantrell suffered from a severe combination of asthma in a smoker/recurrent sinusitis, obesity, mild type II diabetes, heel spurs, an affective disorder (major depression), and a borderline personality disorder. (Admin. R. at 30.) However, the ALJ also found that medical evidence in the record, specifically X-rays and MRIs during 2005 and 2006, did not support Cantrell's allegations that she suffered from degenerative disc disease and disc bulges. (Admin. R. at 31.) The ALJ found Cantrell retained the "residual functional capacity to perform light work... except due to respiratory issues, she needs to avoid concentrated exposure to fumes, gases, et cetera. Employment requiring standing or walking over one half hour continuously is precluded. Close contact with coworkers is precluded. Interaction with the general public is precluded." (Admin. R. at 33.) Accordingly, the ALJ concluded that Cantrell was not disabled under the meaning of the Act at any time from April 20, 2005, through February 21, 2008. (Admin. R. at 27.)
In reaching this conclusion, the ALJ found Cantrell's statement regarding the intensity, persistence, and limiting effect of her pain to be not credible because the majority of her alleged ailments were not supported by objective medical evidence, and the diagnosis of a borderline personality disorder suggested exaggeration. (Admin. R. at 34, 36.) As a result of finding Cantrell's testimony incredible, the ALJ discounted the assessment of Kathy Finley, F.N.P., a treating provider, that Cantrell's headaches, cervical radiculopathy, degenerative disc disease, and bulging discs at the cervical neck would be extremely limiting because she apparently based those limitations entirely on Cantrell's reporting, as radiodiagnostics did not reveal any significant neck impairments. (Admin. R. at 35.) Similarly, the ALJ discounted the report of treating physician Michelle Kaplan, M.D., that degenerative disc disease, asthma, and chronic headaches restricted Cantrell's ability to work, because Dr. Kaplan assumed these impairments existed without objective medical evidence to support such a conclusion. (Admin. R. at 35.)
Cantrell appealed the ALJ's decision to the Appeals Council and provided an x-ray report from the Medford Radiological Group dated March 19, 2008 (the "Report"), which indicated a "straightening of the cervical spine suggestive of underlying muscle spasm" and "marked multilevel degenerative changes... with posterior hypertrophic change." (Admin. R. at 544.) The Appeals Council received the Report, as well as a representative brief dated January 2, 2009, making the newly filed documents a part of the record. The Appeals Council "considered the reasons [Cantrell] disagreed with the [ALJ's] decision and the additional evidence" and "found that this information does not provide a basis for changing the Administrative Law Judge's decision." (Admin. R. at 1-2.) The Appeals Council then denied review and the ALJ's decision became the final decision of the Commissioner on April 8, 2010. (Admin. R. at 1.)
In an Opinion dated March 22, 2012, this court found the ALJ properly discounted Cantrell's testimony based, in part, on the lack of objective medical evidence to support the severity of Cantrell's reported neck pain. Cantrell v. Astrue, No. 3:10-cv-03050-AC, 2012 WL 984289, at *11 (D. Or. Mar. 22, 2012). As the limitations identified by Dr. Kaplan and Nurse were based entirely on Cantrell's own reporting and not on objective medical evidence, this court found the ALJ's rejection of the limitations was supported by the record as well. Id. at 15-16. This court also noted the ALJ's failure to discuss the Report but found the Report immaterial "because the results were not conclusive of acute pathology that would have supported Cantrell's testimony about the severity of her neck and back pain." Id. at *12.
On October 23, 2013, the Ninth Circuit vacated this court's opinion, relying on its recent holding in Brewes v. Comm'r of Social Security Admin., 682 F.3d 1157, 1163 (9th Cir. 2012), that "when the Appeals Counsel considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing a the Commissioner's final decision for substantial evidence." The Ninth Circuit explained that "[b]ecause the 2008 x-ray may have implications for the agency's reasons for denying benefits, we vacate the district court's judgment and remand to the district court with instructions to remand to the agency to reconsider its decision in light of the 2008 x-ray and any other additional evidence that may exist." Cantrell v. Comm'r of Social Security Admin., 543 Fed.Appx. 653, 654 (9th Cir. 2013).
EAJA fees shall be awarded to a prevailing party unless the government can show its position was substantially justified. 28 U.S.C. § 2412(d)(1)(A) (2014). A "substantially justified" position must have a "reasonable bases in law and fact." Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988). This inquiry consists of two parts: "first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court." Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). The reasonableness standard is met if the government's position is "justified in substance or in the main" or "to a degree that could satisfy a reasonable person." Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998). The reasonableness of a government action may be informed by relevant precedent. Kali, 854 F.2d at 332 ("Perhaps the most important of these extraneous circumstances will be the existence of precedent construing similar statutes or similar facts.")
The government has the burden of establishing substantial justification, as a whole. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). This requires the district court to focus on whether the government's position on the particular issue on which the claimant earned remand was substantially justified. Hardisty v. Astrue, 592 F.3d 1072, 1078 (9th Cir. 2010); see also Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995)(claimant was entitled to attorney's fees unless Commissioner could show "that her position with respect to the issue on which the court based its remand was substantially ...