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Rayborn v. Commissioner, Social Security Administration

United States District Court, D. Oregon

February 15, 2017

SHAUN P. RAYBORN, Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          Karen Stolzberg Attorney for Plaintiff.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Janice E. Hebert ASSISTANT UNITED STATES ATTORNEY, Lars J. Nelson SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE

         Plaintiff Shaun Rayborn brought this action seeking review of the Commissioner's decision to deny his applications for disability insurance benefits (DIB) and supplemental security income (SSI). In a September 30, 2016 Opinion & Order, I reversed the Commissioner's decision, concluding that the Administrative Law Judge (ALJ) had denied Plaintiff due process at the January 2014 administrative hearing. I ordered that the case be remanded for a de novo hearing. Judgment was entered on September 30, 2016, and an Amended Judgment was filed October 4, 2016.

         Plaintiff now seeks an award of fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA). Defendant opposes the motion, arguing that the Commissioner's decision was substantially justified. Defendant also argues that Plaintiffs fee request is unreasonable. For the reasons explained below, I agree with Plaintiff on the substantial justification issue. Because I also conclude that the hours requested are reasonable, I award Plaintiff $12, 338.39 in fees. I. Substantially Justified.

         EAJA requires an award of attorney's fees to prevailing parties in civil actions against the United States unless the position of the United States was substantially justified. 28 U.S.C. § 2412(d)(1)(A). There is no dispute that Plaintiff was the prevailing party.

         The burden is on the Commissioner to show that Defendant's position was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). 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 its position had "a reasonable basis both in law and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988). "Substantial justif[ication]" means "justified in substance or in the main - that is, justified to a degree that could satisfy a reasonable person." Id.

         The "position of the United States includes both the government's litigation position and the underlying agency action giving rise to the civil action." Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (internal quotation marks omitted); see also 28 U.S.C. § 2412(d)(2)(D) (the '"position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based"). "Thus, if the government's underlying position was not substantially justified, we must award fees and need not address whether the government's litigation position was justified." Id. (internal quotation marks and brackets omitted).

         Defendant argues that its defense of this matter had a reasonable basis in fact and law. Before this Court, Defendant contended that the ALJ, in telling Plaintiffs counsel at the hearing that further questioning would not be helpful, was exercising his authority to control the presentation of evidence and prevent undue repetition by witnesses. See Def's Brief 4-7, ECF 20. Defendant further contended that Plaintiffs counsel was to blame because she voluntarily ceased questioning in the face of the ALJ's statements that he did not want to hear "anything" and that more testimony would not be helpful. In opposing the EAJA fee request, Defendant returns to the notion that Plaintiffs counsel's discontinuation of questioning was the issue and contends it was reasonable for Defendant to assert that position before this Court. Because judges may express "impatience, dissatisfaction, annoyance, and even anger" without violating due process, Liteky v. United States, 510 U.S. 540, 555-56 (1994), Defendant argues that it had a reasonable basis in fact and law to assert that Plaintiffs counsel cut off questioning and that Plaintiff was accorded a full hearing.

         Defendant makes no argument directly addressing whether the ALJ's position, e.g., the underlying agency action giving rise to the civil action, was substantially justified. But, as indicated above, the position of the United States at both the agency level and the district court level must be substantially justified to deny an EAJA fee request.

         My September 30, 2016 Opinion makes clear that the ALJ's statements at the hearing went beyond impatience, dissatisfaction, annoyance, or anger. Sept. 30, 2016 Op. 7-10. As explained in more detail in that Opinion, the ALJ may have initially limited his comments to those expressing impatience or annoyance, id. at 7-8, but, the ALJ continued and persisted in interrupting counsel by urging her to move along. Id. Then, he finally told counsel '"I don't want to hear anything.'" Id. at 8 (quoting Tr. 67). The ALJ recited everything he had already read and heard, including that already he knew what Plaintiff "says" and the reasons Plaintiff said he could not work. Id. He concluded his remarks by stating '"[i]f you want to perseverate on Mr. Rayborn's mental limitations, it's just not going to be helpful.'" Id. (quoting Tr. 67). I rejected Defendant's argument that given the previous hearing in the case, the ALJ was simply controlling the presentation of evidence. Id. at 9. Notably, Plaintiffs prior testimony was limited to only his work history. And, the lay witness testimony could not have presented the ALJ with a full picture of Plaintiff s condition because the ALJ himself rejected that testimony in part because the witness saw Plaintiff only a couple of hours per week. Id. Contrary to Defendant's argument, I found that the record established that the first and only time Plaintiff had an opportunity to discuss his impairments was at the January 2014 hearing.

         I also rejected Defendant's contention that the record established that Plaintiffs counsel cut off questioning. I explained that the ALJ's conduct placed counsel in an untenable position. Id. at 9-10. I further noted that in the context of social security cases, where counsel appear repeatedly in front of the same judge, counsel face increased pressure to follow a judge's directive. Id. Thus, the transcript of the hearing showed that the ALJ was responsible for terminating the questioning, not counsel.

         In the end, the record demonstrated that the ALJ prevented Plaintiff from continuing with testimony regarding his mental limitations at the only hearing where such testimony was being elicited. As a result, the ALJ violated Plaintiffs due process rights. Defendant's position at the underlying agency level was not substantially justified. See Mendenhall v. Nat'l Transp. Safety Bd., 92 F.3d 871, 874 (9th Cir. 1996) ("A finding that an agency's position was substantially justified when the agency's position was based on violations of the Constitution, federal statute or the agency's own regulations, constitutes an abuse of discretion").

         Additionally, the Commissioner's position in the litigation here was not based on a reasonable interpretation of the record. Defendant argues that the record unambiguously showed that Plaintiffs counsel terminated questioning and thus, it was reasonable for Defendant to argue to this Court that the ALJ was simply exercising his right to control the evidentiary presentation. I agree with Defendant that the record was unambiguous, but for the reasons already discussed, I conclude that the record unambiguously established that the ALJ ...


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