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Bartlett v. Berryhill

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

October 19, 2017

TRICIA A.K. BARTLETT, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER ON MOTION FOR ATTORNEY'S FEES

          DAVID W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Tricia A.K. Bartlett filed a Motion for Attorney's Fees and Expenses, seeking attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). Dkt. 23. Defendant objects to the Motion, contending the Defendant's position in the underlying case was substantially justified. Dkt. 24.

         The Court concludes Defendant's position was not substantially justified. Accordingly, Plaintiff's Motion is granted. Plaintiff's request for an additional 2.7 hours expended in defending this Motion is also granted.

         BACKGROUND

         On June 7, 2017, the Court found the ALJ erred in his assessment of the medical opinion evidence.[1] Dkt. 20. The Court 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 September 5, 2017, Plaintiff filed this Motion. Dkt. 23. Defendant filed a Response, Dkt. 24, and on September 22, 2017, Plaintiff filed a Reply. Dkt. 25.

         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 she received a remand of the matter to the administration for further consideration. See Dkt. 20, 21. 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 Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995); Pierce, 487 U.S. at 565). 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. Toebler 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 fact the Administration did not prevail on the merits does not compel the Court to conclude its position was not substantially justified. See Kali, 854 F.2d at 334.

         Here, the Court found the ALJ primarily erred in his treatment of the medical opinion evidence. See Dkt. 20. For example, the ALJ erred when he found Plaintiff's treating physician not qualified to assess Plaintiff's psychiatric condition, as an ALJ cannot discount a treating physician's opinion on a psychiatric condition simply because the physician is not a mental health specialist. Dkt. 20, pp. 8-9 (citing Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995)). The ALJ also erred by discounting a medical opinion rendered after Plaintiff's date last insured, since an ALJ must consider relevant evidence rendered after the date last insured. Id. at 9 (citing Turner v. Comm'r of Soc. Sec. Admin, 613 F.3d 1217, 1228-29 (9th Cir. 2010)). In addition, the ALJ erred by giving little weight to medical opinions for being based on Plaintiff's self-reports, as the treatment notes indicated the physicians also relied on objective measures. Id. at 9, 12-13 (citing Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014)). The ALJ further erred by providing conclusory reasons to discount medical opinion evidence. See Id. at 11-12 (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). In sum, the ALJ failed to provide specific and legitimate reasons for discounting the medical opinion evidence. Id. at 10, 13.

         Defendant argues its position was substantially justified because the Court found, in some respects, one physician's opinion was inconsistent with the record. Dkt. 14, p. 2. In the underlying case, the Court did find the ALJ properly discounted one part of a physician's opinion. See Dkt. 20, p. 6-7. Nonetheless, as the Court explained in its Order, an ALJ errs when he divides a medical opinion into two parts and offers proper reasons to discount one part of the medical opinion but fails to provide a proper reason to discount the other part. Id. at 10 (citing Dale v. Colvin, 823 F.3d 941, 945 (9th Cir. 2016)). Here, the Court found the ALJ erred when he failed to provide specific and legitimate reasons to discount one part of a medical opinion. See Id. at 5-10. The ALJ also failed to properly consider the entire medical opinion of a different physician. Id. at 10-13. Hence, the ALJ erred, as he failed to provide specific and legitimate reasons, supported by substantial evidence, to discount the medical opinion evidence. See Id. at 5-13; see also Hensley, 461 U.S. at 435 (“the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters”); Gardner v. Berryhill, 856 F.3d 652, 658 (9th Cir. 2017) (awarding EAJA fees where “[r]emand was a foregone conclusion” due to errors at the administrative level).

         In sum, because the Court determined the ALJ's evaluation of the medical opinion evidence as a whole was not supported by substantial evidence, the ALJ's position was not substantially justified. See Meier, 727 F.3d at 872 (there is a strong indication the government's position was not substantially justified when the agency's decision is unsupported by substantial evidence); Corbin v. Apfel, 149 F.3d ...


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