United States District Court, W.D. Washington, Seattle
JEFFREY D. DYKES, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.
ORDER RE: MOTION FOR EQUAL ACCESS TO JUSTICE ACT
Alice Theiler, United States Magistrate Judge.
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 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
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.
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)).
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
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
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).
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
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.
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.