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Osier v. Commissioner Social Security Administration

United States District Court, D. Oregon

August 2, 2017

SHELLY OSIER, Plaintiff,


          Malcolm F. Marsh United States District Judge.

         Presently 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.


         Plaintiff 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.

         Plaintiff 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.

         On July 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.


         I. Substantial Justification

         Under 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 618.

         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 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).

         The 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.

         On 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.

         II. Reasonableness of EAJA Award

         An 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 ...

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