United States District Court, W.D. Washington, Tacoma
RAMIRO H. COSIO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendants.
ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY
FEES AND EXPENSES PURSUANT TO 28 U.S.C. § 2412
Theresa L. Fricke United States Magistrate Judge
matter is before the Court on Ramiro H. Cosio's filing of
a motion for attorney fees, expenses, and costs pursuant to
28 U.S.C. § 2412, the Equal Access to Justice Act
(EAJA). Dkt. 23. After amending his motion, Mr. Cosio seeks a
total of $6, 100.49 in attorney fees, $414 in costs, and
$5.97 in expenses. Dkt. 27.
request for attorneys' fees should not become a second
major litigation. Decker v. Berryhill, 856 F.3d 659,
663 (9th Cir. 2017). The Court may grant a plaintiff's
motion because the ALJ's reasons are not supported by the
record. See Meier v. Colvin, 727 F.3d 867, 873 (9th
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United
States fees and other expenses, in addition to any costs
awarded pursuant to subsection (a), incurred by that party in
any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action, 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).
government bears the burden of proving that its position was
substantially justified. Gardner v. Berryhill, 856
F.3d 652, 656 (9th Cir. 2017). The Court considers whether
the government's conduct was “justified to a degree
that could satisfy a reasonable person” and “had
a ‘reasonable basis both in law and fact.'”
Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir.
2001) (quoting Pierce v. Underwood, 487 U.S. 552,
565 (1988)). Substantial justification is “more than
mere reasonableness, ” though it “does not mean
‘justified to a high degree.'” Kali v.
Bowen, 854 F.2d 329, 331 (9th Cir. 1988);
Corbin, 149 F.3d at 1052 (quoting Pierce,
487 U.S. at 565).
Court must review the position of the United States in the
civil action as well as the underlying action or inaction of
the agency. Gardner, 856 F.3d at 656. The Court must
determine whether the government's position on the
particular issue on which the Court based the remand decision
was substantially justified, not whether the ALJ would
ultimately deny benefits after considering the case again on
remand. Gardner, 856 F.3d at 656-57.
Corbin v. Apfel, the Ninth Circuit overturned the
district court's decision denying the plaintiff's
request for attorneys' fees. 149 F.3d 1051, 1052 (9th
Cir. 1998). The Court observed that, because the ALJ failed
to provide clear and convincing reasons for discrediting the
plaintiff's subjective complaints, this was such a
fundamental error that it was difficult to justify the
government's position on appeal in that case.
Id. at 1053; see also Shafer v. Astrue, 518
F.3d 1067, 1071-72 (9th Cir. 2008) (holding that ALJ made the
same type of fundamental error as ALJ in Corbin by
failing “to provide clear and convincing reasons for
discrediting [claimant's] subjective complaints”).
When the ALJ's decision is not supported by substantial
evidence, this strongly indicates that the government's
position lacks substantial justification under 28 U.S.C.
§ 2412(d)(1)(A). Meier, 727 F.3d at 872.
it is uncontested that Mr. Cosio is a prevailing party given
that this case was remanded for an award of benefits.
Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir.
2002) (citing Shalala v. Schaefer, 509 U.S. 292,
301-02 (1993)). In addition, the Commissioner does not argue
there are any special circumstances making an award of
attorney fees unjust.
Commissioner does not appear to contend, either, that the
ALJ's underlying decision was substantially justified.
Because both the underlying agency decision and the
Commissioner's litigation position must be substantially
justified to avoid EAJA fees, the Commissioner's failure
to contend that the ALJ decision was substantially justified
would alone lead this Court to grant Mr. Cosio's EAJA
motion. See Meier, 727 F.3d at 870. The Court
nonetheless addresses the Commissioner's arguments below.
Commissioner asks that this Court deny Mr. Cosio's motion
because the government's position in defending the ALJ
decision was substantially justified. In particular, the
Commissioner asserts that a reasonable person could have
found, as the ALJ did, that objective evidence did not
support the opinion of David Wigutoff, Ph.D., a psychiatrist
who examined Mr. Cosio. Dkt. 25, pp. 2-3.
the Commissioner is correct on this narrow point, it would
not make either the ALJ decision or the Commissioner's
litigation position substantially justified. As this Court
observed in reversing the ALJ decision, the ALJ was required
to give “‘persuasive, specific, valid
reasons'” to assign less weight to Mr. Cosio's
disability rating from the U.S. Department of Veterans
Affairs (VA), and the record needed to support those reasons.
Dkt. 20, p. 5; Berry v. Astrue, 622 F.3d 1228, 1236
(9th Cir. 2010) (quoting Valentine v. Comm'r Soc.
Sec. Admin., 574 F.3d 685, 694-95 (9th Cir. 2009)). The
ALJ stated only that the VA rating was “inconsistent
with the evidence of record through the date last insured,
the period at issue, ” pointing to evidence that Mr.
Cosio could attend group therapy. Dkt. 20, p. 6; AR 1982. She
also rejected the underlying opinion of Dr. Wigutoff.
Id. The Court found that these were not persuasive,
specific, or valid reasons and that the record did not
support them. Dkt. 20, pp. 6-9.
record's lack of support for the ALJ's reasoning is a
“strong indication” that the ALJ's position
was not substantially justified. Meier, 727 F.3d at
873. The Commissioner offers no reason that this would be a
“decidedly unusual case” in which the ALJ's
decision lacked substantial evidence to support it but was
nonetheless substantially justified. See Meier, 727
F.3d at 872. Because the ALJ ...