Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fowler v. Berryhill

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

April 20, 2017

BRIAN FOWLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,[1] Defendant.

          ORDER ON MOTION FOR ATTORNEY'S FEES

          David W. Christel United States Magistrate Judge.

         Plaintiff 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. 6.

         The Court concludes Defendant's position was not substantially justified. Accordingly, Plaintiff's Motion is granted.

         Background and Procedural History

         On 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.

         On 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.

         Discussion

         In any 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.

         I. Substantially Justified

         In this 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).

         The 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.

         Here, 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 explanation”).

         The 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).

         After 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.