United States District Court, D. Oregon, Portland Division
ORDER ON EAJA FEES
V. ACOSTA UNITED STATES MAGISTRATE JUDGE
Ann P. 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.
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.)
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.)
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.)
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.)
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.
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).
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.
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.
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.)
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 ...