United States District Court, W.D. Washington, Tacoma
TRICIA A.K. BARTLETT, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER ON MOTION FOR ATTORNEY'S FEES
W. CHRISTEL, UNITED STATES MAGISTRATE JUDGE
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.
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.
7, 2017, the Court found the ALJ erred in his assessment of
the medical opinion evidence. 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.
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.
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 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).
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.
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,
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
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 ...