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Christian W. v. Commissioner Social Security

United States District Court, D. Oregon

June 12, 2018

CHRISTIAN W., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FINDINGS AND RECOMMENDATION

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Christian W. has filed a Motion for Attorney Fees Under 28 U.S.C. § 2412(d) (ECF #30), the Equal Access to Justice Act ("EAJA"), for $6, 366.16. Defendant does not dispute the amount requested, but objects on the basis that its position in this case was substantially justified. For the reasons discussed below, the motion for attorney fees should be GRANTED.

         FINDINGS

         "The Equal Access to Justice Act (EAJA) instructs that this court 'shall' grant attorney fees to a prevailing plaintiff 'unless' the government meets its burden to demonstrate that both its litigation position and the agency decision on review were 'substantially justified.'" Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (citing 28 U.S.C. § 2412(d)(1)(a)). "[I]t '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.'" Id. (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.2005)).

         "The government bears the burden of demonstrating substantial justification." Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir.2005). '"Substantial justification' is equated with 'reasonableness.'. . . The government's position is 'substantially justified' if it 'has a reasonable basis in law and fact.'" Ramon-Sepulveda v. INS, 863 F.2d 1458, 1459 (9th Cir. 1988) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)); see also Al-Harbi v. INS, 284 F.3d 1080, 1085 (9th Cir.2002) ("Substantial justification in this context means justification to a degree that could satisfy a reasonable person.").

         "The government's position must be substantially justified at each stage of the proceedings." Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (quoting Corbin v. Apfel, 148 F.3d 1051, 1052 (9th Cir. 1998). The government's position encompasses both the underlying agency decision and the government's litigation position. Meier v. Colvin, 727 F.3d 867, 871-72 (9th Cir.2013). Where an "agency's decision was unsupported by substantial evidence," it "is a strong indication that the position of the United States was not substantially justified." Id. at 872.

         Here, this court found that the ALJ failed to provide legally sufficient reasons for discrediting Dr. Causeya's opinion. The ALJ rejected Dr. Causeya's opinion, in part, because she did not have accurate information regarding plaintiffs substance abuse. Tr. 24. However, this court found that Dr. Causeya's report indeed showed she was aware of and had fully accounted for plaintiffs substance use.

         The Commissioner contends that her position was substantially justified because there was "some evidence" that plaintiffs methamphetamine use was more of an ongoing problem than he let on. Resp. 2 (citing Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir. 1991)). The Commissioner argues that plaintiff had misrepresented his drug use to other providers, which suggested he might have done the same with Dr. Causeya. She also argues that another report indicates plaintiffs methamphetamine use did not stop until well after Dr. Causeya examined him, undermining the veracity of plaintiff s reports about methamphetamine consumption at the time. The Commissioner further contends that none of Dr. Causeya's tests accounted for the possibility that plaintiffs impairments were due to his methamphetamine abuse. The Commissioner asserts that, "[o]n this record, a reasonable person could have found that Dr. Causeya was likely misinformed about the extent of Plaintiff s drug use, which undermined the value of her opinion." Resp. 3.

         However, the Commissioner ignores that Dr. Causeya's opinion dedicated a full paragraph to plaintiffs substance abuse. Dr. Causeya was aware that plaintiff began using alcohol and marijuana at age 11, and that he was drinking eight to 10 beers daily from the age of 14 or 15. Tr. 532. He tried cocaine in his teens and 20s, and methamphetamine at age 50. Id. Rather than minimizing his addiction, plaintiff reported that he had been sober only six and a half years, and credited his alcohol use for contributing to his poor work history and school absences. Id.

         The Commissioner also ignores that the ALJ's decision was unsupported by substantial evidence in other respects. Importantly, this court found that the ALJ improperly relied on a reason that had previously been rejected in an earlier remand order. As the court noted, "[t]his reason is no more specific and legitimate three years later." Findings and Recommendation 12, ECF #26, adopted by Order, February 1, 2018, ECF #28. This court also found that the ALJ improperly discredited Dr. Causeya's opinion on grounds related to plaintiffs work history and ADLs. Id. at 13. The fact that the ALJ's "decision was unsupported by substantial evidence . . . is a strong indication that the position of the United States was not substantially justified." Meier, 727 F.3d. at 872. "Because the government's underlying position was not substantially justified, [this court] need not address whether the government's litigation position was justified." Id.

         Despite this, the Commissioner contends that her position was otherwise substantially justified with respect to the limitations described by the state agency psychologists. The Commissioner contends that, "if the ALJ's ultimate conclusion was consistent with that of the state agency psychologists, then a reasonable person could have found that the ALJ did not, in fact, reject those opinions (silently or otherwise)." Resp. 4. However, as this court previously noted, "[t]he ALJ's failure to include those restrictions while purporting to give weight to the DDS doctors' assessments is wholly unexplained." Findings and Recommendations 17, adopted by Order, February 1, 2018. Moreover, this court agreed with plaintiff that "the two included restrictions simply do not account for the multiple other areas of moderate limitation identified by the DDS doctors." Id. Where the ALJ's opinion was so lacking in explanation, it cannot be said that there was a reasonable basis for the government's position.

         RECOMMENDATION

         For the reasons discussed above, plaintiffs Motion for Attorney's Fees Under 28 U.S.C. § 2412(d) (ECF #33) should be GRANTED.

         SCHEDULING ...


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