United States District Court, W.D. Washington, Tacoma
ORDER ON MOTION FOR ATTORNEY'S FEES
W. Christel United States Magistrate Judge
Suzanne Constantino filed a Motion for Attorney Fees
(“Motion”), seeking attorney's fees pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412
(“EAJA”). Dkt. 17. Defendant objects to the
Motion, contending Defendant's position in the underlying
case was substantially justified. Dkt. 19.
Court concludes Defendant's position was not
substantially justified. Accordingly, Plaintiff's Motion
(Dkt. 17) is granted. Plaintiff's request for an
additional 1 hour expended in defending this Motion is also
granted. See Dkt. 20.
November 28, 2017, the Court found the ALJ erred in her
assessment of medical opinion evidence from Dr. Shawn K.
Kenderline, Ph.D., and Dr. Richard W. Washburn,
Ph.D.Dkt. 15. Accordingly, 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.; see also Dkt. 16.
January 29, 2018, Plaintiff filed the present Motion. Dkt.
17. Thereafter, on February 13, 2018, Defendant filed a
Response. Dkt. 19. That same day, Plaintiff filed a Reply.
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. 15, 16. To award
attorney's fees to a prevailing plaintiff, 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).
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. 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.
case, the Court found the ALJ erred in her treatment of
medical opinion evidence from Drs. Kenderline and Washburn.
See Dkt. 15, pp. 7-13. While the ALJ provided
several reasons for giving less weight to these two opinions,
her reasons were improper, unsupported by the record, and
conclusory. See Id. As the ALJ did not provide
specific, legitimate reasons supported by substantial
evidence for discrediting Drs. Kenderline and Washburn, the
Court found the ALJ committed harmful error in her
consideration of these two opinions. See id.
argues Dr. Kenderline wrote his “results were invalid
because Plaintiff ‘did not follow instructions,
'” and therefore, the ALJ properly determined
“Dr. Kenderline relied more heavily on Plaintiff's
unreliable statements than on any objective evidence.”
Dkt. 19, pp. 2-3 (citing Dkt. 9, Administrative Record
(“AR”) 25, 360). Defendant's argument is
simply unsupported by the record. Namely, Dr. Kenderline did
not write his own test results were invalid. Rather,
when discussing records he reviewed, Dr. Kenderline wrote:
“Beck Anxiety Inventory (BAI) = invalid; client did not
follow instructions on this instrument.” AR 360. Hence,
the context of Dr. Kenderline's evaluation reveals he did
not write that his results were invalid, but rather that a
record he reviewed was invalid.
as discussed in the Court's underlying Order, Dr.
Kenderline conducted his own objective testing to support his
findings, including both a clinical interview and mental
status examination. See AR 360-61, 363-64. As such,
his evaluation cannot be discounted for relying on
Plaintiff's statements. See Buck v. Berryhill,
869 F.3d 1040, 1049 (9th Cir. 2017) (clinical interviews and
mental status examinations “cannot be discounted as a
‘self-report, '” and “the rule allowing
an ALJ to reject opinions based on self-reports does not
apply in the same manner to [psychiatry] opinions”).
Thus, the Administration's opinion regarding Dr.
Kenderline's position was not substantially justified.