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Garrison v. Commissioner of Social Security

United States District Court, D. Oregon

February 10, 2015

LISA A. GARRISON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

Arthur W. Stevens III, BLACK, CHAPMAN, WEBBER & STEVENS, Medford, OR, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon, Ronald K. Silver, Assistant United States Attorney U.S. ATTORNEY'S OFFICE, DISTRICT OF OREGON, Portland, OR, Lars J. Nelson, Special Assistant United States Attorney SOCIAL SECURITY ADMINISTRATION Office of the General Counsel, Seattle, WA, Attorneys for Defendant.

OPINION & ORDER

MARCO A. HERNNDEZ, District Judge.

Plaintiff Lisa Garrison's counsel presently seeks an award of $5, 382.85 in fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, and costs in the amount of $20.40. Defendant opposes the fee request, arguing that the government's position was substantially justified and the requested fees are unreasonable. The Court disagrees, and grants Plaintiff's application for fees and costs.

BACKGROUND

After the Administrative Law Judge (ALJ) issued her decision in February 2012, which found Plaintiff not disabled, Plaintiff submitted additional evidence from the Klamath County Department of Mental Health regarding Plaintiff's mental health. Garrison v. Comm'r Soc. Sec. Admin., No. 1:13-CV-01671-HA, 2014 WL 5018811, at *6 (D. Or. Oct. 7, 2014). Most importantly, Plaintiff submitted a bio-psychosocial assessment and a psychiatric diagnostic review, both of which diagnosed Plaintiff with a number of impairments not considered by the ALJ, including post-traumatic stress disorder, psychotic disorder NOS, and alcohol-induced persistent dementia. Id. The Appeals Council erroneously rejected Plaintiff's additional evidence as untimely. Id. Therefore, District of Oregon Judge Haggerty reversed the ALJ's decision and remanded for consideration of whether the new evidence submitted to the Appeals Council would change the outcome of the ALJ's decision. Id.

STANDARDS

"For the court to award attorney's fees and costs pursuant to the EAJA, it must be shown that (1) the plaintiff is the prevailing party; (2) the government has not met its burden of showing that its positions were substantially justified or that special circumstances make an award unjust; and (3) the requested attorney's fees and costs are reasonable." Perez-Arellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)). Here, there is no dispute that Plaintiff was the prevailing party.

DISCUSSION

Defendant argues that the government's position was substantially justified and the requested attorney's fees are unreasonable. Defendant's arguments are unavailing.

I. Substantial Justification

The burden is on the Commissioner to show that his position was substantially justified. Hardisty v. Astrue, 592 F.3d 1072, 1076 n. 2 (9th Cir. 2010). Although "Congress did not intend fee shifting [under EAJA] to be mandatory [, ]" "EAJA creates a presumption that fees will be awarded to prevailing parties." Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). However, the "government's failure to prevail does not raise a presumption that its position was not substantially justified." Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). To establish that its position was substantially justified, the government must show that the underlying decision by the ALJ had "a reasonable basis both in law and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988); Renee v. Duncan, 686 F.3d 1002, 1017 (9th Cir. 2012).

The essence of Judge Haggerty's decision is that the Appeals Council erred in determining that the supplemental mental health records had no bearing on whether Plaintiff was disabled. It appears that the Appeals Council made a mistake in determining the dates of the new mental health evidence. Therefore, the Council did not consider the merits of the evidence because it did not consider the evidence relevant to the ALJ's disability determination. This failure to consider the new evidence means the Commissioner's position lacked a reasonable basis in fact, making it not substantially justified.

This case is unlike the recent unpublished Ninth Circuit memorandum opinion cited by Defendant, in which the Court denied EAJA fees where remand was based solely on newly submitted evidence. See Linge v. Colvin, No. 13-35430, 2015 WL 223553, at *1 (9th Cir. Jan. 16, 2015). In Linge, the new evidence at issue was a report indicating that the claimant may have sleep apnea and it did not discuss limitations clearly at odds with the ALJ's determination of the claimant's residual functional capacity (RFC). In contrast, here the new reports regarding Plaintiff's mental health are likely at odds with the ALJ's findings of Plaintiff's RFC, as the reports are relevant to Plaintiff's mental health at the time of the ALJ's decision. As Judge Haggerty noted, "this ...


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