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Schwitzke v. Berryhill

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

December 22, 2017

MICHAEL LEE SCHWITZKE JR, Plaintiff,
v.
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          DAVID W. CHRISTEL UNITED STATES MAGISTRATE JUDGE

         Plaintiff Michael Lee Schwitzke, Jr. filed a Motion for EAJA Fees and Costs, seeking attorney's fees under the Equal Access to Justice Act (“EAJA”). Dkt. 23. Defendant asserts her position in this matter was substantially justified and requests no fee be awarded. Dkt. 25. 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. 5.

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

         Background and Procedural History

         On September 8, 2017, the Court found the ALJ erred by failing to properly consider the medical opinion evidence. Dkt. 21. 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 December 7, 2017, Plaintiff filed the Motion. Dkt. 23. Defendant filed a Response, Dkt. 25, and Plaintiff filed a Reply. Dkt. 26.

         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. 21, 22. 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, 49 F.3d at 569). 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 when he failed to discuss significant and probative evidence contained in Dr. Christmas Covell's opinion. Dkt. 21. In his decision, the ALJ did not include a discussion regarding Dr. Covell's opinion as to Plaintiff's occasional lapses in concentration, persistence, and pace due to anxiety, difficulty with concentration under pressure, and slowed processing. Further, the ALJ did not include a limitation in the RFC specific to Dr. Covell's opinion that Plaintiff will have occasional lapses in concentration, persistence, and pace. It is clearly established an ALJ “may not reject significant probative evidence without explanation.” Flores, 49 F.3d 562 at 570-71. As the ALJ failed to discuss significant, probative evidence, the Court concluded the ALJ committed harmful error requiring reversal. See Dkt. 21.

         The Court also determined the ALJ failed to provide specific, legitimate reasons supported by substantial evidence for giving less weight to the opinions of Drs. Charles Quinci and Randy Hurst. While the ALJ provided several reasons for giving less weight to these two opinions, his findings were conclusory, improper, and not supported by the record. See Dkt. 21. As the ALJ did not provide specific, legitimate reasons supported by substantial evidence for giving less weight to Drs. Quinci and Hurst, the Court found the ALJ committed harmful error in his consideration of these two opinions. See Dkt. 21.

         Defendant asserts the Administration was substantially justified in its decision to litigate this case, but does not argue the ALJ's underlying position was substantially justified. See e.g. Dkt. 25, p. 2 (“Commissioner argued the ALJ did not overlook…”), p. 3 (“Commissioner addressed this issue in the briefing”), p. 4 (“Commissioner was justified in defending this case”). As Defendant does not clearly articulate how the ALJ's underlying position was substantially justified, the Court finds it must award fees and is not required to address Defendant's arguments that the Administration's litigation position was justified. See Tobeler, 749 F.3d at 834 (emphasis in original) (“Because the government's underlying position was not substantially justified, we award fees, even if the government's litigation position ...


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