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Dykes v. Berryhill

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

March 26, 2018

JEFFREY D. DYKES, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.


          Mary Alice Theiler, United States Magistrate Judge.


         Plaintiff filed a motion for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (Dkt. 32.) He seeks $7, 491.98 in fees[1] and $13.75 in expenses. The Commissioner argues plaintiff is not entitled to EAJA fees because the Commissioner's position was “substantially justified.” (Dkt. 33.) The Commissioner alternatively requests the Court find the fee request unreasonable and award a reduced amount. The Court, for the reasons set forth below, concludes plaintiff's motion should be GRANTED and plaintiff awarded the fees and expenses requested.


         Under EAJA, the Court awards fees and expenses to a prevailing party in a suit against the government unless it concludes the position of the government was “substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). Having secured a remand of this matter, plaintiff is the prevailing party. Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002). Nor are there any special circumstances that would make an award unjust.

         A. Substantial Justification

         The Commissioner's position is deemed substantially justified if it meets the traditional standard of reasonableness, meaning it is “justified in substance or in the main, or to a degree that could satisfy a reasonable person.” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (quoted sources and internal quotations omitted). While the government's position need not be correct, it must have “‘reasonable basis in law and fact.'” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)). “‘The government bears the burden of demonstrating substantial justification.'” Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005)).

         In this case, the Court ordered a remand for further administrative proceedings upon concluding the Administrative Law Judge (ALJ) erred in assessing the opinions of examining physician Dr. Donna Johns, mental health practitioner Sue Gebhardt, and treating physician Dr. Daniel Beavers. The Court noted further consideration of these medical opinions on remand could implicate the assessment of plaintiff's symptom testimony, residual functional capacity (RFC), and the step five conclusion.

         The Commissioner maintains the government's position with regard to Drs. Johns and Beaver was substantially justified because “some evidence” supports it. Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir. 1991). The Commissioner points to aspects of the ALJ's decision in which the Court found no error, such as the discounting of a Global Assessment of Functioning (GAF) score assigned by Dr. Johns and the ALJ's conclusion elsewhere in the decision to not assign value to any of the GAF scores in the record. (Dkt. 29 at 7.) As the Commissioner observes, the Court also found the ALJ properly considered inconsistency in plaintiff's presentation to Dr. Johns and Dr. Donald Ramsthel, and that Dr. Johns' report provided some support for the ALJ's conclusion Dr. Johns based her opinion on plaintiff's self-reports and presentation. (Id. at 8.) With respect to Dr. Beavers, the Court stated it “could be said” the ALJ reasonably interpreted the opinion as speculative and couched largely in equivocal terms, inconsistent with treatment notes, and relying in large part on plaintiff's self-reports, and that the ALJ accurately described GAF scores as not properly understood to represent a longitudinal picture of functioning over time. (Id. at 16.) The Commissioner construes the Court's Order as not identifying any error in relation to Gebhardt. (Dkt. 33 at 3, n.1 (citing Dkt. 29 at 13).)

         In considering substantial justification, the Court first considers the underlying agency action, meaning the decision of the ALJ, and then considers the government's litigation position. Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013). A “‘holding that the agency's decision . . . was unsupported by substantial evidence is . . . a strong indication that the ‘position of the United States' . . . was not substantially justified.'” Id. (quoting Thangaraja, 428 F.3d at 874). Indeed, only in a “‘decidedly unusual case'” will there be “substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record.'” Thangaraja, 428 F.3d at 874 (quoted case omitted).

         Where the government's underlying position was not substantially justified, the court “need not address whether the government's litigation position was justified.” Meier, 727 F.3d at 872 (citing Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008)). Instead, “[b]ecause the government's underlying position was not substantially justified, we award fees, even if the government's litigation position may have been justified.” Tobeler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014). Also, in considering substantial justification, the Court looks only to whether the “‘position on the . . . issues that led to remand was not substantially justified.'” Id. at 834-35 (rejecting district court's reliance on the fact that it found only one error and affirmed the remainder of the ALJ's conclusion as the rationale for finding substantial justification) (quoting Flores v. Shalala, 49 F.3d 562, 564 (9th Cir. 1995) (emphasis added)). Accord Gardner v. Berryhill, 856 F.3d 652, 656-57 (9th Cir. 2017) (“[T]he district court must determine whether the government's position regarding the specific issue on which the district court based its remand was ‘substantially justified[.]'”; noting the question was not whether other evidence could support a denial of benefits or whether a denial might ultimately be sustained, “[i]t was whether the actual decision that was made by the ALJ could be affirmed at that time by the district court in light of the new evidence in the record.”)

         The Commissioner here addresses aspects of the ALJ's assessment the Court did not find in error. The Commissioner fails to address the errors identified by the Court and resulting in the remand. For example, the Court found that, while there was some support for the ALJ's conclusion Dr. Johns relied on plaintiff's self-reports, Dr. Johns' report also reflected consideration of her own findings. (Dkt. 29 at 9.) Those findings included moderate impairment in day-to-day activities indicated by plaintiff's inability to engage in any sustained activities or use any persistent concentration, and numerous pertinent findings on mental status examination, including, but not limited to, “behavioral distraction with frequent inability to respond to questions regarding personal information and infrequent, hesitant eye contact” and “confused content of thought with evidence of moderate levels of hallucinations[.]” (Id.) Also, while elsewhere in the decision providing specific and legitimate reasons in relation to all GAF scores in the record, the ALJ erred in stating that Dr. Johns and Gebhardt “‘explicitly'” based the GAF scores they assigned on factors irrelevant to the disability analysis. (Id. at 6-7 (discussing differences between Axis IV, psychosocial and environmental problems, and Axis V, the GAF scale, of the Multiaxial Assessment System; noting Dr. Johns did not provide any explanation for the GAF score) and at 13 (noting Gebhardt did not explicitly base her GAF score on irrelevant factors and could have based the score on her clinical observations or findings on examination, such as plaintiff's difficulty sitting in chair, impaired impulse control, cognition, and memory recall, impairment in intelligence, and concrete abstract abilities).) Further, despite some arguably unobjectionable criticisms of the opinions of Dr. Beaver, the ALJ's lengthy discussion of extra-record evidence at hearing regarding Dr. Beaver and failure to address that discussion in the decision “called into question” the ALJ's consideration of this opinion evidence and necessitated further consideration and clarification on remand. (Id. at 16.) Finally, all of the errors identified by the Court potentially implicated the remainder of the ALJ's decision.

         The Court finds nothing in the Commissioner's opposition to the motion for EAJA fees to show the ALJ's findings with regard to the above-described errors were supported by substantial evidence. The underlying action was not substantially justified. See, e.g., Meier, 727 F.3d at 872 (no substantial justification where ALJ failed to provide specific and legitimate reasons for rejecting physician's opinion and clear and convincing reasons for discounting plaintiff's credibility). Even though it need not be considered, the Court also finds an absence of substantial justification for the agency's litigation position. The Commissioner does not meet her burden of demonstrating substantial justification as a basis for opposing EAJA fees.

         B. Reasonab ...

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