United States District Court, W.D. Washington, Tacoma
W. CHRISTEL UNITED STATES MAGISTRATE JUDGE
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.
Court concludes Defendant's position was not
substantially justified. Accordingly, Plaintiff's Motion
and Procedural History
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. §
December 7, 2017, Plaintiff filed the Motion. Dkt. 23.
Defendant filed a Response, Dkt. 25, and Plaintiff filed a
Reply. Dkt. 26.
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 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).
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.
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.
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.
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 ...