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Kerley v. Berryhill

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

February 2, 2018

TIMOTHY KERLEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER ON PLAINTIFF'S CONTESTED MOTION FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT

          J. Richard Creatura United States Magistrate Judge

         This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States Magistrate Judge, Dkt. 5). This matter comes before the Court on plaintiff's contested motion for attorney's fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (hereinafter “EAJA”) (see Dkts. 18, 19).

         In this matter, the Court reversed the ALJ's written decision based on new evidence submitted to the Appeals Council that was not before the ALJ. Therefore, the ALJ was substantially justified in her original findings in the written decision on that issue. In addition, reasonable minds could differ regarding other findings originally relied on by the Court. Attorney's fees are provided pursuant to the Equal Access to Justice Act only if the Administration's position was not substantially justified.

         Therefore, as the Court has concluded that the Administration's positions were substantially justified, plaintiff's motion for attorney's fees and costs (Dkt. 18) is denied.

         BACKGROUND and PROCEDURAL HISTORY

         On July 24, 2017, this Court issued an Order reversing and remanding this matter for further consideration by the Administration (see Dkt. 16).

         The Court found that the ALJ erred in reviewing the medical evidence when failing to find that plaintiff's alleged fibromyalgia was a medically determinable impairment (see id.). This matter was reversed pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration due to the harmful error in the evaluation of plaintiff's alleged fibromyalgia (see id.).

         Subsequently, plaintiff filed a motion for EAJA attorney's fees, to which defendant objected (see Dkt. 18). Defendant asserts that “the government's position was substantially justified. Accordingly, the Commissioner asks the Court to deny Kerley's motion for fees and costs.” (Dkt. 19, p. 1, 5-6). Plaintiff did not file a reply (see Dkt.).

         STANDARD OF REVIEW

         In any action brought by or against the United States, the EAJA requires that "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 that its positions overall were substantially justified. Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010), cert. denied, 179 L.Ed.2d 1215, 2011 U.S. LEXIS 3726 (U.S. 2011) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995)). A finding that an Administrative finding is not based on substantial evidence is a good indication of a lack of substantial justification. See Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013) (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, supra, 461 U.S. at 433, 436-37.

         DISCUSSION

         In this matter, plaintiff clearly was the prevailing party because he received a remand of the matter to the Administration for further consideration (see Order on Complaint, Dkt. 16). In order to award a prevailing plaintiff attorney fees, the EAJA also requires a finding that the position of the United States was not substantially justified. 28 U.S.C. § 2412(d)(1)(B).

         The Court notes that the fact that the Administration did not prevail on the merits does not compel the conclusion that its position was not substantially justified. See Kali v. Bowen, 854 F.2d 329, 334 (9th Cir. 1988)) (citing Oregon Envtl. Council v. Kunzman, 817 F.2d 484, 498 (9th Cir. 1987)). The Court also notes that when determining the issue of substantial justification, the Court reviews only the “issues that led to remand” in determining if an award of fees is appropriate. See Toebler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014)). Hence, here, we have the issue of the ALJ's failure to find that ...


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