United States District Court, W.D. Washington Seattle.
MATTHEW J. MENDIETA, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
HONORABLE JOHN C. COUGHENOUR
ORDER GRANTING PLAINTIFF'S MOTION FOR EAJA
C. Coughenour UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Matthew
Mendieta's motion for attorney fees pursuant the Equal
Access to Justice Act (EAJA) (Dkt. No. 16). Having thoroughly
considered the parties' briefing and the relevant record,
the Court finds oral argument unnecessary and hereby GRANTS
the motion for the reasons explained herein.
applied for Social Security Disability Insurance benefits
(SSDI) on October 30, 2010, and was denied. (Dkt. No. 14 at
2.) Plaintiff then sought review by this Court, which found
that the Administrative Law Judge (ALJ) had improperly
dismissed evidence from Plaintiff's physicians and state
non-examining psychological consultants by failing to make
specific findings. (Id. at 3-18.) This Court
reversed and remanded the proceeding for further
consideration. (Id. at 18-19.)
the EAJA, an award of attorney fees is not appropriate if the
“position of the United States was substantially
justified.” 28 U.S.C. § 2412(d)(1)(A). However,
where an ALJ's decision is overturned because it was
“lacking reasonable, substantial and probative evidence
in the record, ” it would be “decidedly
unusual” for the Government's position to be
substantially justified. Thangaraja v. Gonzales, 428
F.3d 870, 874 (9th Cir. 2005) (citing Al-Harbi v.
I.N.S., 242 F.3d 882, 886 (9th Cir. 2001)). The Ninth
Circuit held that if the “case was unsupported by
substantial evidence [there is] a strong indication that the
‘position of the United States' . . . was not
substantially justified.” Id. (quoting 28
U.S.C. § 2412(d)(1)(A)). The Commissioner may be
substantially justified when defending ALJ procedural errors.
“Procedural errors include . . . improperly rejecting
testimony from a medical expert.” Gillman v.
Astrue, 829 F.Supp.2d 999, 1004 (W.D. Wash. 2011)
(internal citations omitted). However, “[w]hile the
government's defense on appeal of an ALJ's procedural
error does not automatically require a finding that the
government's position was not substantially justified,
the defense of basic and fundamental errors . . . is
difficult to justify.” Corbin v. Apfel, 149
F.3d 1051, 1053 (9th Cir. 1998).
example, an ALJ “is not bound by the uncontroverted
opinions of the claimant's physicians on the ultimate
issue of disability, . . . but he cannot reject them without
presenting clear and convincing reasons for doing so.”
Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir.
1993) (quoting Montijo v. Sec'y of Health and Human
Serv., 729 F.2d 599, 601 (9th Cir. 1984)). “An ALJ
errs when he rejects a medical opinion or assigns it little
weight while doing nothing more than ignoring it, asserting
without explanation that another medical opinion is more
persuasive, or criticizing it with boilerplate language that
fails to offer a substantive basis for his conclusion.”
Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir.
argues that the Commissioner's position was substantially
justified because there were three issues of fact where the
ALJ could have reasonably made two opposite conclusions.
(Dkt. No. 17 at 3-4.) The three pieces of evidence were (1)
Dr. Misner's opinion; (2) Dr. Widlan's opinion; and
(3) Dr. Fischer and Dr. Nelson's opinions as
non-examining state agency psychological consultants. (Dkt.
No. 14 at 3-18.)
the Court determined that the ALJ failed in evaluating the
evidence proffered by Dr. Misner. The ALJ rejected Dr.
Misner's opinion without specifically articulating why
Dr. Misner's Global Assessment of Functioning (GAF) score
of 35 was less credible or inconsistent with another
doctor's earlier GAF score of 62. (Id. at 4-5.)
In addition, the Court found the ALJ's rejection of Dr.
Misner's opinion also failed to be sufficiently detailed
because it was ambiguous and purportedly based on
Plaintiff's subjective reports of symptoms. (Dkt. No. 14
ALJ's findings about Dr. Widlan's opinion were
equally vague. The ALJ rejected the opinion because of
inconsistencies between Dr. Widlan's opinion and the
mental status examination (MSE). (Id. at 12.)
However, the Court noted there were abnormalities in the MSE
that could have readily informed Dr. Widlan's opinion.
(Id.) There were no specific findings as to why the
ALJ discounted these facts, and thus no reason to discount
Dr. Widlan's opinion. (Id.)
final basis for remand was the rejection of Dr. Fischer's
and Dr. Nelson's opinions as non-examining state agency
psychological consultants. To reject the findings of a
physician, the ALJ must do so “by reference to specific
evidence in the medical record.” (Dkt. No. 14 at 15)
(quoting Sousa v. Callahan, 143 F.3d 1240, 1244 (9th
Cir. 1998)). The Court found that the ALJ based conclusions
on “pure assumptions and speculation, ” not on
specific evidence. (Id.)
Court rejected all three pieces of evidence because the ALJ
failed to make specific findings or provide clear and
convincing evidence for the rejection. Thus the ALJ made
“basic and fundamental errors.” Corbin,
149 F.3d at 1053. Because of these errors, the
Commissioner's position was not “substantially
justified.” See Id. Therefore, the Court
GRANTS Plaintiff's motion for attorney fees.
foregoing reasons, Plaintiff's motion for attorney fees
in the amount of $7, 258.00 (Dkt. No. 16) is GRANTED. The
Court ORDERS a check for the above amount be made payable to
the Plaintiff's attorney, Tha Win, and ...