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McCallister v. Colvin

United States District Court, Ninth Circuit

December 30, 2013

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


BENJAMIN H. SETTLE, District Judge.

This matter comes before the Court on Plaintiff Gwenneth Louise McCallister's ("McCallister") motion for attorney fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (Dkt. 21). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.


On October 16, 2012, McCallister filed a request for judicial review of the Commissioner of Social Security's ("Commissioner") final decision denying her disability benefits. Dkt. 3. On September 6, 2013, Magistrate Judge Karen L. Strombom issued a Report and Recommendations ("R&R"), reversing the ALJ's decision to deny benefits and remanding the matter for further administrative proceedings. Dkt. 18. Judge Strombom found that the ALJ erred in evaluating the opinions of Shane D. Dunaway, M.D., McCallister's treating physician, which affected the ALJ's assessment of McCallister's residual functional capacity (RFC) and thus her finding of no disability. Dkt. 18 at 6. Specifically, Judge Strombom found:

As plaintiff points out, the state agency physical evaluation form Dr. Dunaway completed defines the term "sedentary work" in part as work that "may require sitting, walking and standing for brief periods" (AR 395), while the Commissioner's regulations provide in terms of sedentary work that "[s]itting would generally total about 6 hours" (Social Security Ruling ("SSR") 96-9p, 1996 WL 374185 *3). Defendant is correct that use of the word "may" in the state agency form indicates it is permissive in nature. That is, although sedentary work may require sitting for only brief periods, such is not necessarily the case. By the same token, however, clearly the definition of sedentary work employed on the form Dr. Dunaway completed contemplates the possibility of such a sitting limitation. It is unclear though whether Dr. Dunaway felt plaintiff could only sit for brief periods or if he instead felt she could sit for up to six hours at a time or if he felt she fell somewhere in between.[footnote omitted] See AR 395.
The ALJ should have addressed this ambiguity in Dr. Dunaway's opinion, as well as the potential conflict with the Commissioner's own definition of sedentary work, before finding Dr. Dunaway believed plaintiff was qualified to do the latter. The ALJ's failure to do so constitutes error on her part. Defendant argues such error is harmless because the vocational expert testified at the hearing that the jobs she identified "would accommodate [a] sit/stand option." [footnote omitted] See AR 59. But as noted by plaintiff the vocational expert did not testify as to the frequency of the shift between sitting and standing accommodated by those jobs, and thus it is not at all clear that such an option would adequately encompass the potential need to sit for brief periods only. Given that it is the Commissioner's burden to establish that plaintiff can perform other work, it is not reasonable to assume the sit/stand option the vocational expert testified too necessarily shows plaintiff could perform all of those jobs. See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir.1999); 20 C.F.R. § 404.1520(d), (e), § 416.920(d), (e).

Dkt. 18 at 6-7. Judge Strombom concluded that because issues remained with regard to "the medical opinion evidence in the record concerning the plaintiff's ability to sit - and therefore in regard to her residual functional capacity and ability to perform other... jobs... remand is appropriate." Id. at 7-8.

No objections to the R&R were filed. On October 10, 2013, the Court adopted Judge Strombom's R&R. Dkt. 19. On October 11, 2013, judgment was entered consistent with the Court's ruling. Dkt. 20.

On October 30, 2013, McCallister filed the instant motion for EAJA fees. Dkt. 21. On November 21, 2013, the Commissioner responded in opposition. Dkt. 23. On November 15, 2013, McCallister filed a reply. Dkt. 24.


A. Standard of Review

EAJA provides, in relevant part:

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 proceedings 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 ...

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