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Constantino v. Berryhill

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

March 8, 2018

NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff 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.

         The 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.


         On 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.[1]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.

         On 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. Dkt. 20.


         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 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).

         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. 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.

         In this 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.

         Defendant 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.

         Furthermore, 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. See ...

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