United States District Court, D. Oregon
TIM WILBORN, Wilborn Law Office, PC, Las Vegas, NV, Attorney for Plaintiff.
S. AMANDA MARSHALL, United States Attorney, District of Oregon, RONALD K. SILVER, Assistant United States Attorney, Portland, OR, BRETT E. ECKELBERG, Social Security Administration, Office of the General Counsel, Seattle, WA, Attorneys for Defendant.
ORDER FOR EAJA FEES
MALCOLM F. MARSH, District Judge.
Plaintiff seeks an award of attorney fees in the amount of $5, 915.89 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (d) (1) (A).Because I find that the position of the Commissioner was not substantially justified, plaintiff's application for fees is granted in part and denied in part.
Plaintiff protectively filed her applications for disability insurance benefits and supplemental security income disability benefits on November 10, 2009, alleging disability due to multiple sclerosis and peripheral neuropathy beginning June 1, 2008. Plaintiff's applications were denied initially and upon reconsideration. An ALJ held a hearing on February 13, 2012. On May 3, 2012, the ALJ issued a decision denying plaintiff's applications. After Appeals Council denied review, plaintiff timely appealed.
Plaintiff raised four independent assignments of error in her appeal. The court rejected three of those arguments, but agreed with plaintiff that the ALJ's Step Four finding is not supported by substantial evidence. Exercising discretion, I remanded the case for further proceedings.
Plaintiff, as the prevailing party, subsequently filed the present Application for Fees Pursuant to EAJA (#22). The Commissioner objects to plaintiff's fee application, arguing solely that a fee award is inappropriate because the Commissioner's litigation position was substantially justified, and therefore, plaintiff is not entitled to fees under the EAJA.
I. Substantial Justification
Under 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).
The position of the United States includes the "government's litigation position and the underlying agency action giving rise to the civil action." Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). The government bears the burden of demonstrating substantial justification. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). The government's position must be substantially justified at both stages. Meier, 727 F.3d at 872; Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008).
On appeal to this court, plaintiff argued that the ALJ improperly rejected plaintiff's testimony and the lay testimony of her mother, that the ALJ's step four finding was unsupported by substantial evidence, and that the hypothetical posed to the vocational expert (VE) was invalid. In the Opinion and Order (#20), I upheld the ALJ's findings on all issues raised with the exception of one, ALJ's step four finding.
The Commissioner argues that its position was substantially justified because it has a reasonable basis in fact. I disagree. As I specifically discussed in the Opinion and Order, VE testimony of cashier positions listed in the Dictionary of Occupational Titles (DOT) was ambiguous because the VE failed to provide citations to the DOT codes. Opinion and Order, (#20), p. 22. The ALJ did not request DOT codes to clarify the record. Id. Finally, the ALJ erroneously found plaintiff could perform her past relevant work of cashier as generally performed without indicating which cashier job plaintiff could perform at step four. Id. at p. 23. Based on the significant lack of clarity in the record, the ALJ's finding that plaintiff could perform her past relevant ...