United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Michele Belanger seeks attorney's fees and costs pursuant
to the Equal Access to Justice Act ("EAJA"), 28
U.S.C. § 2412. Defendant, Acting Commissioner of Social
Security Nancy Benyhill, opposes plaintiffs motion for fees
on the basis that the government's position was
substantially justified. For the reasons set forth below,
plaintiffs motion for costs is granted but her motion for
fees is denied, BACKGROUND
initially applied for Title XVI supplemental security income
("SSI") in 1998. A long and complicated procedural
history followed, involving four administrative hearings, two
Appeals Council remands, and a remand directed by this Court.
On September 21, 2012, the ALJ issued a fourth written
decision finding plaintiff not disabled, On appeal, I found
no harmful erroand affirmed. Belcmger v.
Cohin, 2014 WL 1400205, *11 (D. Or. Apr. 7, 2014). On
March 29, 2017, the Ninth Circuit reversed and remanded for
further proceedings. Belcmger v. Berryhill, -
F.App'x -, 2017 WL 1164401 (9th Cir. Mar, 29, 2017)
three judges on the appellate panel agreed that the ALJ
harmfully erred with respect to the opinion of vocational
expert David Hitt. Id. at *3. Judges Fisher and
Friedland further held that the ALJ had erroneously rejected
the opinions of two of plaintiff s treating physicians,
Id. at *2-*3. Concurring in the judgment, Judge
O'Scannlain parted ways with the majority; he would have
held that the ALJ properly discounted the treating
physicians' opinions. Id. at *4
(O'Scannlain, J., concurring part and concurring in the
that prevails against the United States government in a civil
action is entitled, under certain circumstances, to an award
of attorney's fees under the EAJA. 28 U.S.C. § 2412.
pertinent part, the EAJA provides:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceeding for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, 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 EAJA establishes a two-part test for determining whether
an award of attorney's fees is appropriate. The court
must first ascertain if the plaintiff was a prevailing party;
if so, the court must then evaluate whether the government
was substantially justified in its position and whether
special circumstances exist that would make an award of
attorney's fees unjust. Mores v. ShaJala, 49
F.3d 562, 567 (9th Cir. 1995).
seeking fees under the EAJA, the government has the burden to
demonstrate that its position had "a reasonable basis in
both law and fact." Pierce v. Underwood, 487 U,
S. 552, 565 (1988). When the agency's decision is not
supported by substantial evidence, that is a "strong
indication" the government's position in the
underlying agency action was not substantially
justified." Thangaraja v. Gonzalez, 428 F.3d
870, 874 (9th Cir. 2005), It is the "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. (citation and quotation marks
omitted). However, "this circuit has never stated that
every time this court reverses and remands the
ALJ's decision for lack of substantial evidence the
claimant should be awarded attorney's fees."
Campbell v. Colvin, 736 F.3d 867, 869 (9th Cir.
2013) (emphasis in original). In each case, the court must
"assess the justification of the Commissioner's
position based on its reasonableness before the [remanding]
court made its decision on the merits." Decker v.
Berryhill, 856 F.3d 659, 664 (9th Cir. 2017) (citations
omitted). Because reasonableness is assessed from the
government's perspective at the time it made its
litigation decisions, it is appropriate to "consider the
government's success in the district court as
part of the EAJA analysis" when the case is reversed on
appeal. Meier v. Colvin, 727 F.3d 867, 873 (9th Cir.
2013) (emphasis in original).
undisputed that plaintiff was a prevailing party. The only
remaining questions are whether the government's position
was substantially justified and whether special circumstances
would make a fee award in this case unjust. On the particular
circumstances presented by this case, I find the
government's position was substantially justified.
the single rationale that united the three-judge panel rested
on Dale v. Colvin,823 F.3d 941, 945 (9th Cir.
2016). Dale was decided a year after the completion
of briefing in plaintiffs Ninth Circuit appeal and more than
two years after the completion of briefing in plaintiffs
appeal to this Court. In Dale, the Ninth Circuit
explained that it had not previously addressed "whether
an ALJ may discount the entire medical opinion of an
other source when the ALJ has divided the testimony into
distinct parts and only one of those parts is
inconsistent with objective evidence in the record."
Id. (emphasis in original). The court went on to
hold that the ALJ could not discount an opinion
wholesale in that way. Id. Litigating plaintiffs
appeal before Dale was decided, the government took
the then-justified position that a non-medical source's
opinion could be rejected on such grounds, Because
Dale expressly settled an ...