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Santos v. Colvin

United States District Court, Ninth Circuit

January 9, 2014

APPLICATION FOR ATTORNEY FEES, CAROLYN W. COLVIN, Commissioner of COSTS Social Security, Defendant.


KAREN L. STROMBOM, Magistrate Judge.

Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. This matter comes before the Court on plaintiff's filing of an application for attorney fees, costs and other expenses pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. See ECF #17. After reviewing plaintiff's application, defendant's response to that application, plaintiff's reply thereto, and the remaining record, the Court finds that for the reasons set forth below plaintiff's application should be granted.


On September 13, 2012, plaintiff filed a complaint in this Court seeking judicial review of defendant's decision to deny his application for disability insurance benefits. See ECF #1. In his opening brief, plaintiff argued defendant's decision should be reversed and remand for an award of benefits, or in the alternative for further administrative proceedings, because the ALJ erred:

(1) in finding plaintiff's hypertension and sleep apnea were not severe impairments;

(2) in evaluating the opinions of Gary Gaffield, D.O., James Parker, M.D., and Kristine S. Harrison, Psy.D.;
(3) in discounting plaintiff's credibility;
(4) in failing to adopt all of the mental limitations found by Michael L. Brown, Ph.D., Patricia Kraft, Ph.D., and Leslie Postovoit, Ph.D., in assessing plaintiff's residual functional capacity ("RFC");
(5) in failing to resolve the inconsistency between the vocational expert'stestimony identifying the jobs of laundry worker, warehouse laborer, mailroom clerk, and office helper that could be performed and the descriptions of those jobs contained in the Dictionary of Occupational Titles with respect to the limitation to simple, repetitive work assessed by the ALJ; and
(6) in failing to consider the vocational impact of the need to accommodate plaintiff's use of a service dog.

See ECF #15; see also ECF #12. On September 12, 2013, the Court issued an order reversing and remanding defendant's decision to deny benefits for further administrative proceedings, agreeing that the ALJ erred: (a) by failing to properly take into consideration all of the mental limitations found by Drs. Brown, Kraft and Postovoit in assessing plaintiff's RFC; (b) by failing to properly consider the vocational impact of plaintiff's use of a service dog; and (c) in finding plaintiff to be capable of performing the job of mailroom clerk. See ECF #15.

On December 10, 2013, plaintiff filed her application for attorney fees, costs and expenses pursuant to the EAJA, requesting attorney fees in the amount of $6, 377.00, costs in the amount of $350.00 and other expenses in the amount of $17.85. See ECF #17. On December 23, 2013, defendant filed her response to plaintiff's application, arguing plaintiff's application should be denied on the basis that the government's position was substantially justified. See ECF #20. As plaintiff has filed her reply to defendant's response (see ECF #21), plaintiff's application is now ripe for the Court's review.


The 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 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). Thus, to be eligible for attorney fees under the EAJA: (1) the claimant must be a "prevailing party"; (2) the government's position must not have been "substantially justified"; and (3) no "special circumstances" exist that make an award of attorney fees unjust. Commissioner, Immigration and Naturalization Service v. Jean , 496 U.S. 154, 158 (1990).

In Social Security disability cases, "[a] plaintiff who obtains a sentence four remand is considered a prevailing party for purposes of attorneys' fees." Akopyan v. Barnhart , 296 F.3d 852, 854 (9th Cir. 2002) (citing Shalala v. Schaefer , 509 U.S. 292, 301-02 (1993).[1] Such a plaintiff is considered a prevailing party even when the case is remanded for further administrative proceedings. Id . There is no issue here as to whether plaintiff is a prevailing party given that as discussed above, defendant's decision to deny benefits was reversed and this case was remanded for further administrative proceedings. In addition, defendant does not argue that the amount of attorney fees, costs and other expenses are unreasonable or that there are special circumstances making an award of attorney's fees unjust.

I. Substantial Justification

As noted above, to be entitled to attorney fees under the EAJA, defendant's position must not be "substantially justified." Jean , 496 U.S. at 158. Normally, for defendant's position to be "substantially justified, " this requires an inquiry into whether defendant's conduct was "justified in substance or in the main' - that is, justified to a degree that could satisfy a reasonable person" - and "had a reasonable basis both in law and fact.'" Gutierrez v. Barnhart , 274 F.3d 1255, 1258 (9th Cir. 2001) (quoting Pierce v. Underwood , 487 U.S. 552, 565 (1988)); Penrod v. Apfel , 54 F.Supp.2d 961, 964 (D. Ariz. 1999) (citing Pierce , 487 U.S. at 565); see also Jean , 496 U.S. at 158 n.6; Flores v. Shalala , 49 F.3d 562, 569-70 (9th Cir. 1995). As such, this "does not mean justified to a high degree.'" Corbin v. Apfel , 149 F.3d 1051, 1052 (9th Cir. 1998) (quoting Pierce , 487 U.S. at 565). On the other hand, "the test" for substantial justification "must be more than mere reasonableness." Kali v. Bowen , 854 F.2d 329, 331 (9th Cir. 1988).

Defendant has the burden of establishing substantial justification. See Gutierrez , 274 F.3d at 1258. Defendant's position must be " as a whole , substantially justified." Gutierrez , 274 F.3d at 1258-59 (emphasis in original). That position also "must be substantially justified' at each stage of the proceedings.'" Corbin , 149 F.3d at 1052 ("Whether the claimant is ultimately found to be disabled or not, the government's position at each [discrete] stage [in question] must be substantially justified.'") (citations omitted); see also Hardisty v. Astrue , 592 F.3d 1072, 1078 (9th Cir. 2010) ("[D]istrict courts should focus on whether the government's position on the particular issue on which the claimant earned remand was substantially justified, not on whether the government's ultimate disability determination was substantially justified."). Accordingly, the government must establish that it was substantially justified both in terms of "the underlying conduct of the ALJ" and that "its litigation position defending the ALJ's error." Gutierrez , 274 F.3d at 1259. As the Ninth Circuit further explained:

The plain language of the EAJA states that the "position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." 28 U.S.C. § 2412(d)(2)(D); Jean , 496 U.S. at 159, 110 S.Ct. 2316 (explaining that the "position" relevant to the inquiry "may encompass both the agency's prelitigation conduct and the [agency's] subsequent litigation positions"). Thus we "must focus on two questions: first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court." Kali v. Bowen , 854 F.2d 329, 332 (9th Cir. 1988).

Id.; see also Kali , 854 F.2d at 332 (noting government's position is analyzed under "totality of the circumstances" test)[2]; Thomas v. Peterson , 841 F.2d 332, 334-35 (9th Cir. 1988). Indeed, the Ninth Circuit has explicitly stated that "[i]t is difficult to imagine any circumstance in which the government's decision to defend its actions in court would be substantially justified, but the underlying decision would not." Sampson, 103 F.3d at 922 (quoting Flores , 49 F.3d at 570 n.11).

The EAJA creates "a presumption that fees will be awarded unless the government's position was substantially justified." Thomas , 841 F.2d at 335; see also Flores , 49 F.3d at 569 (noting that as prevailing party, plaintiff was entitled to attorney's fees unless government could show its position in regard to issue on which court based its remand was substantially justified). Further, while "[t]he government's failure to prevail does not raise a presumption that its position was not substantially justified, " a district court's "holding that the agency's decision... was unsupported by substantial evidence is... a strong indication that the position of the United States'... was not substantially justified." Meier v. Colvin , 727 F.3d 867, 872 (9th Cir. 2012) (quoting Thangaraja v. Gonzales , 428 F.3d 870, 874 (9th Cir. 2005) ("[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.'") (citation omitted)); Kali , 854 F.2d at 332, 334; Thomas , 841 F.2d at 335.[3]

Defendant argues the government was substantially justified in defending the errors the Court found the ALJ committed, because the issues upon which this matter was reversed and remanded had a reasonable basis in both law and fact. The Court disagrees. Substantial justification will not be found where the government defends "on appeal... basic and fundamental' procedural mistakes made by the ALJ." Lewis v. Barnhart , 281 F.3d 1081, 1085 (9th Cir. 2002) (quoting Corbin , 149 F.3d at 1053). In Corbin, the Ninth Circuit found "the failure to make [specific] findings" and "weigh evidence" to be "serious" procedural errors, making it "difficult to justify" the government's position on appeal in that case. Corbin , 149 F.3d at 1053. In Shafer v. Astrue , 518 F.3d 1067, 1072 (9th Cir. 2008), the Ninth Circuit found the ALJ "committed the same fundamental procedural errors" noted in Corbin in failing "to provide clear and convincing reasons for discrediting [the claimant's] subjective complaints, " and "to make any findings regarding" the diagnosis of a non-examining medical expert. The Court of Appeals went on to find the ALJ committed additional procedural errors not present in Corbin, including rejecting "a treating physician's opinion in favor of a non-treating physician's opinion without providing clear and convincing reasons." Id.

The errors committed by the ALJ in this case are of a similar nature to those pointed out in Corbin and Shafer. In reversing and remanding this matter, the Court noted that the ALJ had failed to properly consider all of the mental functional limitations found by Drs. Brown, Kraft and Postovoit, including her failure to address at all the need to adjust to well introduced changes assessed by the latter two psychologists. See ECF #15, p. 6. Nor did the ALJ properly take into account the vocationally relevant evidence concerning the need for a service dog, which potentially could preclude all three jobs identified by the vocational expert. Lastly, the record showed that given the ALJ's own RFC assessment one of those jobs would be eliminated due to its required reasoning level. See id. at p. 10, n.4. Such failure to provide specific and legitimate reasons for rejecting the above evidence is the type of "basic and fundamental" error that makes it difficult to justify substantial justification on the government's part in this case. Lewis , 281 F.3d at 1085; Corbin , 149 F.3d at 1053; see also Shafer , 518 F.3d at 1072. The Court, therefore, declines to find defendant's position to be substantially justified here.


For all of the foregoing reasons, plaintiff's application for attorney's fees, costs and expenses pursuant to the EAJA (see ECF #17) hereby is GRANTED. Plaintiff is awarded attorney's fees in the amount of $6, 377, costs in the amount of $350.00, and other expenses in the amount of $17.85, to be paid in the following manner:

(1) Subject to any offset allowed under the Treasury Offset Program, as discussed in Astrue v. Ratliff , 130 S.Ct. 2521, 560 U.S. ___ (2010), payment of this award shall be sent to plaintiff's attorney.
(2) After the Court issues this Order, defendant will consider the matter of plaintiff's assignment of EAJA fees and expenses to plaintiff's attorney. Pursuant to Astrue v. Ratliff , the ability to honor the assignment will depend on whether the EAJA fees and expenses are subject to any offset allowed under the Treasury Offset Program. Defendant agrees to contact the Department of Treasury after this Order is entered to determine whether the EAJA attorney fees and expenses are subject to any offset. If the EAJA attorney fees and expenses are not subject to any offset, those fees and expenses will be paid directly to plaintiff's attorney.

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