United States District Court, D. Oregon
Katherine L. Eitenmiller Brent Wells Harder, Wells, Baron
& Manning, P.C. Attorneys for Plaintiff
J. Williams United States Attorney District of Oregon Janice
E. Hebert Assistant United States Attorney
E. Eckelberg Special Assistant United States Attorney Office
of the General Counsel Social Security Administration
Attorneys for Defendant
OPINION AND ORDER ON EAJA FEES
M. King United States District Judge
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.
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.
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.
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).
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.
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.
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 ...