United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR ATTORNEY'S FEES
W. Christel United States Magistrate Judge.
Brian Fowler filed a Motion for Equal Access to Justice Act
(EAJA) Attorney Fees and Expenses. Dkt. 16. Defendant asserts
her position in this matter was substantially justified and
requests no fee be awarded. Dkt. 17. 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. See Dkt.
Court concludes Defendant's position was not
substantially justified. Accordingly, Plaintiff's Motion
and Procedural History
January 11, 2017, the Court found the ALJ erred in finding
Plaintiff's diagnosis of migraines was not a severe
impairment at Step Two of the sequential evaluation process.
Dkt. 14. The Court found the error was harmful, reversed the
ALJ's decision, and remanded the case to the Social
Security Administration (“Administration”) for
further consideration pursuant to sentence four of 42 U.S.C.
§ 405(g). Id.
March 14, 2017, Plaintiff filed the Motion. Dkt. 16.
Defendant filed a Response, Dkt. 17, and on March 27, 2017,
Plaintiff filed his Reply. Dkt. 18.
action brought by or against the United States, the EAJA
states “a court shall award to a prevailing party other
than the United States fees and other expenses . . . 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).
According to the United States Supreme Court, “the fee
applicant bears the burden of establishing entitlement to an
award and documenting the appropriate hours expended.”
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The
government has the burden of proving its positions overall
were substantially justified. Hardisty v. Astrue,
592 F.3d 1072, 1076 n.2 (9th Cir. 2010) (citing Flores v.
Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995)). Further,
if the government disputes the reasonableness of the fee, it
also “has a burden of rebuttal that requires submission
of evidence to the district court challenging the accuracy
and reasonableness of the hours charged or the facts asserted
by the prevailing party in its submitted affidavits.”
Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th
Cir. 1992) (citations omitted). The Court has an independent
duty to review the submitted itemized log of hours to
determine the reasonableness of hours requested in each case.
See Hensley, 461 U.S. at 433, 436-37.
matter, Plaintiff was the prevailing party because he
received a remand of the matter to the administration for
further consideration. See Dkt. 14, 15. To award a
prevailing plaintiff attorney's fees, the EAJA also
requires finding the position of the United States was not
substantially justified. 28 U.S.C. § 2412(d)(1)(B).
Supreme Court has held “substantially justified”
means “‘justified in substance or in the
main' -- that is, justified to a degree that could
satisfy a reasonable person.” Pierce v.
Underwood, 487 U.S. 552, 565 (1988). A
“substantially justified position must have a
reasonable basis both in law and fact.” Guiterrez
v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001)
(citing Pierce, 487 U.S. at 565; Flores v.
Shalala, 49 F.3d 562, 569 (9th Cir. 1995)). The Court
“‘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.'” Id. at 1259 (quoting Kali v.
Bowen, 854 F.2d 329, 332 (9th Cir. 1988)). Thus, for the
government to prevail, it must establish both the ALJ's
underlying conduct and its litigation position in defending
the ALJ's error were substantially justified.
Id. “[I]f ‘the government's
underlying position was not substantially justified,
'” the Court must award fees and does not have to
address whether the government's litigation position was
justified. Tobeler v. Colvin, 749 F.3d 830, 832 (9th
Cir. 2014) (quoting Meier v. Colvin, 727 F.3d 867,
872 (9th Cir. 2013)). The Court notes the Administration does
not have to prevail on the merits for the Court to conclude
the Administration's position was substantially
justified. See Kali, 854 F.2d at 334.
the Court concluded the ALJ erred in failing to find
Plaintiff's migraines to be a severe impairment at Step
Two of the sequential evaluation process. Dkt. 14. The Court
found the ALJ failed to discuss objective medical evidence
showing Plaintiff was diagnosed with and treated for
migraines. Furthermore, the ALJ gave great weight to the
opinion of Dr. Robinson, but failed to consider his opinion
that Plaintiff's migraines are a severe impairment.
See AR 21, 30. As the ALJ failed to discuss
significant, probative evidence regarding Plaintiff's
migraines, the Court found she erred in finding
Plaintiff's migraines were not a severe impairment at
Step Two. See Dkt. 14; Flores v. Shalala,
49 F.3d 562, 570-71 (9th Cir. 1995) (an ALJ “may not
reject significant probative evidence without
Court also found the ALJ's reasons for finding
Plaintiff's migraines not to be a severe impairment were
insufficient. See Dkt. 14. The ALJ found
inconsistencies between Plaintiff's complaints of
migraines and the record; however, she failed to adequately
explain the alleged inconsistencies. See id.;
see Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007) (an ALJ must provide clear and convincing reasons
to reject a claimant's testimony). She also failed to
consider the entire record when finding Plaintiff's
complaints were inconsistent with the record. Dkt. 14;
see Reddick v. Chater, 157 F.3d 715, 722-23 (9th
Cir. 1998) (finding an ALJ must not “cherry-pick”
certain observations without considering their context).
finding the ALJ erred, the Court concluded the error was
harmful because, had the ALJ properly considered
Plaintiff's migraines at Step Two, she may have found
Plaintiff met a Listing at Step Three and the residual
functional capacity assessment and hypothetical question