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Ann P. v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Portland Division

February 12, 2019

ANN P., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          ORDER ON EAJA FEES

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE

         Plaintiff Ann P.[1] prevailed in her challenge to the decision of the Commissioner of Social Security ("Commissioner") regarding her disability claim. She now moves for an award of attorney fees in the amount of $15, 135.45 under the Equal Access to Justice Act 28 U.S.C. § 2412 (the "EAJA"). The Commissioner opposes Plaintiffs request for fees because its position was substantially justified. Alternatively, the Commissioner seeks a reduction in the award of attorney fees because Plaintiffs request is unreasonable. The court concludes that the Commissioner's position was not substantially justified and that a reduction of the amount of fees is appropriate. Accordingly, Plaintiffs Application for Fees Pursuant to EAJA is GRANTED in part and DENIED in part.

         Background

         On August 8, 2012, Plaintiff filed her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income Benefits ("SSIB") alleging disability beginning January 1, 1996. (Op. & Order 2, ECF No. 20) ("Order"). The Commissioner denied her application initially and on reconsideration. (Order 2.) On May 7, 2015, an Administrative Law Judge ("ALJ") issued an unfavorable decision and found Plaintiff was not entitled to DIB or SSIB. (Order 2.) Plaintiff requested review and submitted new evidence to the Appeals Council, including an opinion from Cynthia Clark, a Qualified Medical Health Professional ("Clark"). (Order 2.) Clark rendered her opinion after treating Plaintiff for more than one year and opined that Plaintiff suffered from depressive states lasting three-to-four months and causing her to miss more than five days of work each month. (Order 15.) The Appeals Council included Clark's newly submitted opinion in the administrative record and denied Plaintiffs request for review. (Order 2.)

         On March 27, 2017, Plaintiff filed a complaint in this court seeking review of the Commissioner's SSIB decision only. (Compl., ECF No. 1.) She alleged three errors: (1) the Commissioner failed to adequately address her subjective symptom testimony; (2) the Commissioner improperly rejected the medical opinion of Dr. William Trueblood, Ph.D; and (3) in light of Clark's opinion, substantial evidence did not support the ALJ's decision. (Order 6.)

         This court issued an Opinion and Order reversing and remanding the Commissioner's decision. The court found the ALJ did not err in discrediting Plaintiffs subjective testimony and did not err in rejecting Dr. William Trueblood's medical opinion. (Order 7, 14.) However, the court concluded that in light of the new probative evidence Clark submitted to the Appeals Council, substantial evidence did not support the ALJ's decision; and, the court reversed and remanded for further proceedings. (Order 17.)

         On August 30, 2018, Plaintiff filed a motion requesting $15, 135.45 in attorney fees under the EAJA. (Appl. Fees EAJA, ECF No. 27.) In response, the Commissioner argues its position was substantially justified. (Resp. Mot. Att'y Fees 1, EFC No. 30) ("Resp."). Alternatively, the Commissioner contends that Plaintiffs application for fees is unreasonable and suggests a reasonable fee amount is $10, 890.00. Id. In her reply, Plaintiff maintains the Commissioner's position is not substantially justified but agrees that a reasonable amount of fees is $10, 890.00. (Pl.'s Reply 9, EFC No. 34.)

         Discussion

         Under the EAJA, a prevailing party other than the United States is entitled to attorney 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). A prevailing party is awarded attorney fees if they "received an enforceable judgment on the merits or a court-ordered consent decree," U.S. v. Milner, 583 F.3d 1174, 1196 (9th Cir. 2009) (internal citation omitted), and "seek an award of [attorney] fees . . . within thirty days of final judgment." 28 U.S.C. § 2412(B). Plaintiff is the prevailing party and eligible for an award of reasonable attorney fees because she received a remand in her favor and timely applied for an award of attorney fees under the EAJA. Decker v. Berryhill, 856 F.3d 659, 661 (9th Cir. 2017).

         A prevailing party is entitled to an award of attorney fees under the EAJA if the United States' or government's position is not "substantially justified." Li v. Keisler, 505 F.3d 913, 918 (9th Cir. 2007). A position is substantially justified if it has a "reasonable basis both in law and fact," and justified to a degree to satisfy a reasonable person. Pierce v. Underwood, 487 U.S. 522, 563, 565 (1998); accord Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). The government has the burden to show its position is substantially justified. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

         When evaluating whether the government's position is substantially justified, the court evaluates the government's position and the underlying agency's position "as a whole and not at each stage." Ibrahim v. U.S. Dep't of Homeland Sec, No. 14-16161, 2019 WL 73988, at *13 (9th Cir. Jan 2, 2019). In the social security context, the ALJ's decision is treated as an agency position. Meier, 727 F.3d at 870. Therefore, the ALJ's decision and government's litigation position in defense of that decision are treated as "an inclusive whole, rather than as atomized line-items" when evaluating whether the government lacked substantial justification. Ibrahim, 2019 WL 73988, at *16. I. The Government's Position was Not Substantially Justified The Commissioner argues its position was substantially justified because the ALJ did not have the benefit of reviewing evidence submitted to the Appeals Council for the first time, and therefore, neither the ALJ nor the Commissioner erred. (Resp. 5.) The Commissioner argues this court affirmed the ALJ's original decision and remanded only because new evidence given to the Appeals Council deprived the ALJ's decision of substantial evidence. (Resp. 4-5.) The Commissioner contends that in doing so, the court acknowledged that the ALJ did not err and therefore, its position was substantially justified. (Resp. 5.) The court disagrees.

         Gardner v. Berryhill is instructive. 856 F.3d 652, 656 (9th Cir. 2017). In Gardner, the ALJ determined the claimant was not disabled. Id. at 645-55. There, the record contained an "interim" medical opinion from the claimant's treating physician that the ALJ gave "little weight" in its determination. Id. at 655. At the Appeals Council, the claimant's treating physician submitted a "final" medical opinion indicating the claimant suffered severe limitations. Id. at 655. The Appeals Council included the final medical opinion in the administrative record but denied review. Id. On appeal, the district court concluded that in light of the new evidence the ALJ's decision could not be affirmed and remanded the case for the ALJ to consider the new final opinion. Id. The Commissioner did not appeal the decision and the claimant moved for an award of attorney fees under the EAJA. Id. at 656. The Gardner court concluded that the Commissioner's position was not substantially justified because "it should have been plain that the [ALJ's decision] could not have been affirmed" in light of the new evidence. Id. at 657. Therefore, the claimant was entitled to an award of fees under the EAJA. Id. at 658.

         As in Gardner, the ALJ in this case determined Plaintiff was not disabled, and she appealed to the Appeals Council. (Order 2.) Plaintiff then submitted Clark's medical opinion to the Appeals Council, and the Appeals Council added it to the administrative record but denied review. (Order 2, 15.) The ALJ did not have an opportunity to review Clark's newly submitted treatment notes. (Order 15-16.)

         Like Gardner, this court reversed and remanded to the ALJ for further proceedings to consider the new probative evidence. (Order 16.) Further proceedings were required because in light of the new evidence, the ALJ's decision was not supported by substantial evidence. (Order 17.) Thus, as in Gardner, here it "should have been plain" that the ALJ's decision could not be affirmed; therefore, the Commissioner's position opposing remand was not substantially ...


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