United States District Court, D. Oregon
ORDER FOR EAJA FEES
Malcolm F. Marsh United States District Judge.
before the Court is Plaintiff Shelly Osier's Application
for Attorney Fees pursuant to the Equal Access to Justice
Act, 28 U.S.C. § 2412(d). Pl.'s Appl. Fees, ECF No.
16. Plaintiff seeks an award of fees in the amount of $7,
225.50. For the reasons that follow, Plaintiffs Application
is granted in part, and denied in part.
alleged disability beginning on August 1, 2003, due to
fatigue, cerebral palsy, lumbago, foot pain, post traumatic
stress disorder ("PTSD"), anxiety, and depression.
Plaintiffs application was denied initially and on
reconsideration. Op. & Order 2, ECF No. 14. After a
hearing, an Administrative Law Judge found Plaintiff is not
disabled in January 2015. After the Appeals Council denied
review, Plaintiff subsequently sought review in this Court.
raised several independent substantive assignments of error
in her appeal. The Court rejected several of those arguments,
but agreed with Plaintiff that the ALJ erred by failing to
provide specific and legitimate reasons for rejecting the
opinion of Karla Causeya, Psy.D. Exercising discretion, the
Court remanded the case for further proceedings.
3, 2017, as the prevailing party, Plaintiff filed this
application for attorney fees seeking $7, 302.57 for 37.9
hours of attorney time. The Commissioner filed a Response in
Opposition to Plaintiffs application for fees asserting its
position was substantially justified. Def.'s Resp., ECF
No. 17. Alternatively, the Commissioner contends that
Plaintiffs application for fees is unreasonable. Plaintiff
filed a reply, in which she reduced the requested amount of
fees to $7, 225.50 reflecting 37.5 hours of attorney time.
the 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); Gonzales, 408 F.3d at
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 at each stage of the proceedings. Id.
at 872; Shafer v. Astrue, 518 F.3d 1067, 1071 (9th
Cir. 2008); Gutierrez v. Barnhart, 274 F.3d 1255,
1258-59 (9th Cir. 2001).
Commissioner contends that it was substantially justified in
defending the ALJ's rejection of Dr. Causeya's
opinion. The Commissioner appears to suggest that because Dr.
Causeya did not specifically opine that Plaintiff would be
unable to work for the requisite 12 months thereby satisfying
the durational requirement, the AL J's discussion of the
medical evidence was substantially justified. The
Commissioner's argument misses the mark.
appeal to this Court, Plaintiff argued that the ALJ
improperly rejected Dr. Causeya's opinion. In its Opinion
and Order, the Court agreed. The Court concluded that the ALJ
erred in rejecting Dr. Causeya's opinion, failing to set
forth specific and legitimate reasons backed by substantial
evidence. As thoroughly set out in the Opinion and Order,
none of the four reasons provided by the ALJ for rejecting
Dr. Causeya's opinion were supported by substantial
evidence. Op. & Order 11-13. For example, the ALJ
rejected Dr. Causeya's opinion because she failed to
provide any explanation for the check-the-box MRFC
assessment. However, as the Court detailed, Dr. Causeya
conducted a battery of independent intellectual and memory
tests and prepared a ten page report detailing her findings.
Id. at 11. Thus, the Court concluded that the
ALJ's failed to offer specific and legitimate reasons,
supported by substantial evidence, for rejecting Dr.
Causeya's opinion. For this reason, and those stated in
the Opinion and Order, the Court concludes that the
government's underlying action was not substantially
justified in this case. Meier, 727 F.3d at 872
(finding government's position was not substantially
justified where ALJ failed to provide specific or legitimate
reasons to discount physician's opinion); accord
Martin v. Comm 'r Soc. Sec. Admin., 598 F.App'x
485, 486 (9th Cir. 2015) (same). Moreover, the Court
determines that because the government's underlying
agency position was not substantially justified, the
government's position defending the rejection of Dr.
Causeya's opinion was not substantially justified.
Shafer, 518 F.3d at 1071 ("The government's
position must be substantially justified at each stage of the
proceedings."); see Doran v. Comm'r Soc. Sec.
Admin.,, Case No. 3:13-cv-01008-MA, 2015 WL 74170, *2
(D. Or. Jan.6, 2015) (finding Commissioner's position in
defending doctor's improperly rejected opinion was not
substantially justified). Accordingly, Plaintiff is entitled
attorney fees under the EAJA.
Reasonableness of EAJA Award
award of attorney's fees under the EAJA must be
reasonable. 28 U.S.C. § 2412(d)(2)(A). The court has an
independent duty to review the fee request to determine its
reasonableness. Hensley v. Eckerhart,461 U.S. 424,
433 (1983); Moreno v. City of Sacramento, 534 F.3d
1106, 1111 (9th Cir. 2008). The starting point for a
reasonable fee is the number of hours expended multiplied by
a reasonable hourly rate. Hensley, 461U.S.at433;
Cos ta v. Comm issioner Soc. Sec. Admin., 690 F.3d
1132, 1135 (9th Cir. 2012). The fee applicant bears the
burden of documenting the appropriate hours expended in the
litigation and must submit evidence in support of those hours