United States District Court, D. Oregon
JOEL A. GUEMBES, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security Defendant.
Michael H. Simon, District Judge.
moves for attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412.
Defendant objects, arguing that her position was
substantially justified and thus EAJA fees are not warranted.
For the reasons discussed below, the Court grants
Plaintiff's motion and awards EAJA fees in the amount of
EAJA authorizes the payment of attorney's fees to a
prevailing party in an action against the United States,
unless the government shows that its position in the
underlying litigation “was substantially
justified.” 28 U.S.C. § 2412(d)(1)(A). Although
EAJA creates a presumption that fees will be awarded to a
prevailing party, Congress did not intend fee shifting to be
mandatory. Flores v. Shalala, 49 F.3d 562, 567 (9th
Cir. 1995). The decision to deny EAJA attorney's fees is
within the discretion of the court. Id.; Lewis
v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). A
social security claimant is the “prevailing
party” following a sentence-four remand pursuant to 42
U.S.C. § 405(g) either for further administrative
proceedings or for the payment of benefits. Flores,
49 F.3d at 567-68 (citing Shalala v. Schaefer, 509
U.S. 292, 300 (1993)). Fee awards under the EAJA are paid to
the litigant, and not the litigant's attorney, unless the
litigant has assigned his or her rights to counsel to receive
the fee award. Astrue v. Ratliff, 560 U.S. 586,
applies a reasonableness standard in determining whether the
government's position was substantially justified.
Flores, 49 F.3d at 569. “The government has
the burden of proving its positions were substantially
justified.” Hardisty v. Astrue, 592 F.3d 1072,
1076 n.2 (9th Cir. 2010). It must demonstrate that its
position had a reasonable basis in both law and fact.
Flores, 49 F.3d at 569-70. The reasonableness
standard is met if the government's position is
“justified in substance or in the main” or
“to a degree that could satisfy a reasonable
person.” Gutierrez v. Barnhart, 274 F.3d 1255,
1258 (9th Cir. 2001) (quotations and citation omitted);
Lewis, 281 F.3d at 1083. The government must justify
both the original agency action and its litigation position.
Gutierrez, 274 F.3d at 1259.
government's failure to prevail in its position on the
underlying issues is not dispositive of the issue of whether
the government's position was “substantially
justified.” See, e.g., Pierce v. Underwood,
487 U.S. 552, 569 (1988) (“Conceivably, the Government
could take a position that is not substantially justified,
yet win; even more likely, it could take a position that is
substantially justified, yet lose.”). A district
court's reversal of the ALJ's decision, however, is a
strong indication that the government's defense of that
decision was not substantially justified. See Thangaraja
v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)
(“Our holding that the agency's decision of [this]
case was unsupported by substantial evidence is therefore a
strong indication that the position of the United States in
this matter was not substantially justified. 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.”)
(internal quotations omitted).
the EAJA, if the government's position is not
substantially justified, the court has discretion to
determine whether the requested fees are reasonable. See
Comm'r, INS v. Jean, 496 U.S. 154, 160-61 (1990)
(the court has similar discretion under the EAJA to determine
the reasonableness of fees as it does under the Fees Act as
described in Hensley v. Eckerhart, 461 U.S. 424,
436-37 (1983)); Atkins v. Apfel, 154 F.3d 986, 989
(9th Cir. 1998) (discussing the Jean clarification
that the Hensley analysis applies to EAJA cases).
One factor a court must consider in this analysis is the
results obtained. See Atkins, 154 F.3d at 989 (the
results obtained factor of the Hensley fee analysis
applies to cases under the EAJA). The Ninth Circuit has
cautioned that district courts may not reduce requested fees
in social security disability appeals without providing
relatively specific reasons. Costa v. Comm'r Soc.
Sec. Admin., 690 F.3d 1132, 1136- 37 (9th Cir. 2012).
seeks attorney's fees in the amount of $6, 809.24. The
Commissioner argues that the Court should decline to award
fees because the government's position was substantially
justified. The Commissioner argues that the Court found that
the ALJ adequately incorporated “all” of the
limitations found by Dr. Ronald Sandoval, PhD and those
limitations included Plaintiff's ability to tolerate
noise, and thus the ALJ's incorporation of noise level
three into the RFC was rational and substantially justified.
The Commissioner misunderstands the Court's findings with
regards to Dr. Sandoval and the ALJ's error with respect
to noise level three.
rejecting Plaintiff's claim of error relating to Dr.
Sandoval, the Court listed the specific limitations
it found Dr. Sandoval had opined about, and found that those
limitations were adequately incorporated into the RFC. Those
limitations did not include any limitation relating to noise
finding error relating to noise level three, the Court found
that the ALJ had provided no explanation for the
determination that Plaintiff was limited to noise level three
instead of noise level two. The Court did not find that the
ALJ's conclusion was irrational or not supported by
substantial evidence in the record, but instead found that
the ALJ failed to explain how the medical evidence supported
a noise level three limitation. The Court noted that
“[a]n ALJ cannot summarize evidence and merely posit a
conclusion.” Guembes v. Berryhill, 2017 WL
4330779, at *7 (D. Or. Sept. 29, 2017) (citing Garrison
v. Colvin, 759 F.3d 995 (9th Cir. 2014)). Thus, the
Court found that it could not conduct a meaningful review of
the ALJ's conclusion.
Commissioner argues that Dr. Sandoval's opinion supports
the ALJ's conclusion that noise level three was the
appropriate limitation. But the ALJ did not describe
how Dr. Sandoval's opinion supports such a limitation.
That was the problem with the ALJ's analysis-not that Dr.
Sandoval's opinion or some other medical evidence did not
support the limitation (although the Court renders no opinion
on that issue one way or the other)-but that there was no
explanation provided for the Court to meaningfully review.
for the Commissioner's position to be substantially
justified, the ALJ must have been substantially justified in
offering no explanation for how the medical evidence supports
a noise level three limitation. The Social Security
regulations and case law have long required that an ALJ
provide a narrative discussion describing how the evidence
supports the conclusions in the RFC. Accordingly, the
Commissioner's position was not substantially justified.
This is not a “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.”
Thangaraja, 428 F.3d at 874. Therefore, Plaintiff is
entitled to EAJA fees.
Commissioner does not challenge the reasonableness of
Plaintiff's fee request. The Court has considered the