United States District Court, W.D. Washington, Seattle
ORDER GRANTING EAJA FEES
RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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).
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.
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).
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