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Belanger v. Berryhill

United States District Court, D. Oregon, Eugene Division

August 14, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          AIKEN, Judge

         Plaintiff 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

         Plaintiff 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 erro[1]and 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 Belcmger v. Berryhill, - F.App'x -, 2017 WL 1164401 (9th Cir. Mar, 29, 2017) (unpublished).

         All 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 judgment).


         A party 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.

         In 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).

         Thus, 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).

         When 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).


         It is 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.

         Importantly, 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 ...

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