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Lyne v. Berryhill

United States District Court, W.D. Washington, Seattle

April 12, 2017

DOREEN LYNE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         This matter comes before the Court on Plaintiff's Motion for Attorney Fees and Costs. Dkt. #19. The Commissioner opposes the motion on the basis that her position was substantially justified. Dkt. #21. For the reasons set forth below the Court disagrees with the Commissioner, and GRANTS Plaintiff's motion.


         On November 27, 2012, Plaintiff filed an application for disability insurance benefits (“DIB”), alleging disability as of January 21, 2011. See Dkt. #10, Administrative Record (“AR”) 12. The application was denied upon initial administrative review and on reconsideration. See AR 12. A hearing was held before ALJ Tom L. Morris on September 18, 2014. AR 12. In a decision dated October 31, 2014, the ALJ determined Plaintiff to be not disabled. AR 12-27. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council, making the ALJ's decision the final decision of the Commissioner. See AR 1; 20 C.F.R. § 404.981, § 416.1481.

         In Plaintiff's Opening Brief, Plaintiff maintained the ALJ erred by: (1) incorrectly weighing the medical opinion evidence; (2) failing to consider the results of a CDIU investigation; (3) incorrectly assessing plaintiff's credibility; and (4) incorrectly weighing the lay witness testimony. Dkt. #12 at 1.

         On November 17, 2016, U.S. Magistrate Judge David W. Christel issued his Report and Recommendation (“R&R”) in this matter, recommending that it be reversed and remanded for further administrative proceedings. Dkt. #16. Judge Christel found that the ALJ had erred in evaluating certain medical opinions, and that the ALJ had erred in failing to consider the results of a CDIU investigation. Dkt. #16 at 3-11. There were no objections to the R&R, and this Court adopted it on December 2, 2016.


         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 EAJA attorney fees: (1) the claimant must be a “prevailing party”; (2) the government's position must not have been “substantially justified”; and (3) no “special circumstances” must exist that make an award of attorney fees unjust. Commissioner, Immigration and Naturalization Serv. v. Jean, 496 U.S. 154, 158, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).

         The test for determining whether the government was substantially justified is whether its position had a reasonable basis both in law and fact. Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995). The burden is on the government to prove substantial justification. Flores, 49 F.3d at 569. In evaluating the government's position, the Court must look at both the underlying government conduct and the positions taken by the government during the litigation. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). If the underlying agency action was not substantially justified, the court need not consider whether the government's litigation position was substantially justified. Id. at 872.

         “The government's failure to prevail does not raise a presumption that its position was not substantially justified.” Kali v. Bowen, 854 F.2d 329, 334 (9th Cir. 1988). However, a finding that the agency decision was not supported by substantial evidence is a “strong indication” that the government's position was not substantially justified. Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005). “Indeed, it 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 Al-Harbi v. I.N.S., 284 F.3d 1080, 1085 (9th Cir. 2002)); Meier, 727 F.3d at 872 (same).

         In this motion, the Commissioner asserts that her position on appeal was justified because a medical opinion's consistency with the record is a proper factor to consider when evaluating what weight to give the opinion, it was reasonable for the Commissioner to argue that the existence of inconsistencies led the ALJ to question the credibility of the challenged medical opinions, and even though the ...

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