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Phillips v. Commissioner, Social Security Administration

United States District Court, D. Oregon

March 27, 2017

COMMISSIONER, Social Security Administration, Defendant.

          Katherine L. Eitenmiller Brent Wells Harder, Wells, Baron & Manning, P.C. Attorneys for Plaintiff

          Billy J. Williams United States Attorney District of Oregon Janice E. Hebert Assistant United States Attorney

          Brett E. Eckelberg Special Assistant United States Attorney Office of the General Counsel Social Security Administration Attorneys for Defendant


          Garr M. King United States District Judge

         Plaintiff Michelle Marie Phillips brought this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”). I reversed the decision of the Commissioner and remanded for further proceedings.

         Pending before me is plaintiff's counsel's Motion for Fees Under the Equal Access to Justice Act (“EAJA”). For the following reasons, I grant the motion and award Phillips $9, 144.98 in attorney fees and $400 in costs.


         The EAJA provides that the court shall award attorney fees and expenses to a prevailing party in any civil action brought by or against the United States unless the court finds that the government's position was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The test for determining whether the government was substantially justified is whether its position had a reasonable basis both in law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995). The burden is on the government to prove substantial justification. Flores, 49 F.3d at 569. In evaluating the government's position, the court must look at both the underlying government conduct and the positions taken by the government during the litigation. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). If the underlying agency action was not substantially justified, the court need not consider whether the government's litigation position was substantially justified. Id. at 872.

         “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, 334 (9th Cir. 1988). However, a finding that the agency decision was not supported by substantial evidence is a “strong indication” that the government's position was not substantially justified. Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005). “Indeed, it will be only a ‘decidedly unusual case in which there is substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record.” Id. (quoting Al-Harbi v. I.N.S., 284 F.3d 1080, 1085 (9th Cir. 2002)); Meier, 727 F.3d at 872 (same).


         I rejected Phillips' arguments that the ALJ should have found fibromyalgia a severe impairment, and that the ALJ erred in her treatment of the opinion of James Morris, M.D. I agreed with Phillips, however, that the ALJ did not account for all of her mental health impairments in the RFC and improperly rejected the opinion of Ryan Scott, Ph.D, a physician hired by the agency who thought Phillips would have difficulty working due to her mental health impairments. I noted Dr. Scott's opinion was supported by the longitudinal record. As a result, substantial evidence supported Dr. Scott's concern that Phillips would miss workdays. The ALJ's finding that Phillips had the capacity to perform other work in the national economy was premised on her improper rejection of Dr. Scott's opinion. As a result, the ALJ's conclusion was not supported by substantial evidence. Fully crediting Dr. Scott's opinion that Phillips' mental impairments would impact her ability to sustain regular employment, along with the VE testimony that missing one day a month would interfere with employment, meant that a finding of disability on remand was required.

         Nevertheless, I did not remand for a total finding of disability. While it was clear to me that Phillips' mental impairments caused her to become disabled at some point prior to her date last insured, it was not apparent that she was entitled to ongoing disability benefits; rather, I thought benefits for a “closed” period of disability was more appropriate. Thus, I found the best course of action was reversal for further development of the record, including a decision as to the beginning and end dates of at least a closed period of disability.


         Phillips is the prevailing party in this action. The Commissioner, however, argues that the underlying decision was “substantially justified, ” as was her position in defense of the underlying decision, findings which would preclude Phillips' request for fees under the EAJA. Accordingly, the question is whether the government met its burden of showing (a) its litigation ...

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