United States District Court, W.D. Washington, Tacoma
MARY A. MEEKER, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.
W. Christel United States Magistrate Judge
Mary A. Meeker 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. 29. Defendant objects to the
Motion, contending Defendant's position in the underlying
case was substantially justified and Plaintiff's request
is unreasonable. Dkt. 32.
Court concludes Defendant's position was not
substantially justified and Plaintiff is entitled to fees.
However, Plaintiff's request for fees is unreasonable.
Accordingly, Plaintiff's Motion (Dkt. 29) is
December 22, 2017, the Court determined it could not conduct
meaningful judicial review of the decision from the ALJ
Administrative Law Judge (“ALJ”) because an
opinion from Plaintiff's treating therapist, Mr. Steve
Adams, may have been omitted from the administrative
record. Dkt 27. Accordingly, because the Court
could not determine whether the ALJ's decision was
supported by substantial evidence, 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. 28.
March 21, 2018, Plaintiff filed the present Motion. Dkt. 29.
Defendant filed a Response on April 2, 2018. Dkt. 32. On
April 4, 2018, Plaintiff filed a Reply. Dkt. 33. Thereafter,
on April 11, 2018, Defendant filed a Motion for Leave to File
a Surreply (Dkt. 34), which the Court denied on April 13,
2018. Dkt 35. Defendant nevertheless filed a Surreply, which
the Court struck from the record for failure to follow a
Court Order. See Dkt. 36, 37, 38.
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. 27, 28. 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.” Gutierrez 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 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 parties disputed whether the ALJ committed harmful
error by failing to consider an opinion from Mr. Adams,
Plaintiff's treating therapist. See Dkt. 10, pp.
4-6; Dkt. 17, pp. 15-17. The Court found that while
Plaintiff's attorney provided evidence showing she
submitted Mr. Adams' opinion to the Administration at
least twice, Defendant's electronic folder for
Plaintiff's case did not contain Mr. Adams' opinion.
Dkt. 27, p. 5. Given this conflicting evidence - particularly
given that the Administration appeared to be on notice that
Plaintiff's representative attempted to submit the
opinion - the Court determined it could not conduct
meaningful judicial review of the ALJ's decision. As
such, the Court reversed and remanded Plaintiff's claim
to the Administration for proper incorporation and
consideration of Mr. Adams' opinion. Id. at 5-7.
argues its litigation position was substantially justified
because there was a “genuine dispute” regarding
whether Mr. Adams' opinion would change the ALJ's
decision or deprive it of substantial evidence. Dkt. 32, pp.
4-6. To support this position, Defendant claims the Court did
not determine Mr. Adams' opinion “constituted
substantial evidence or would have changed the ALJ's
decision.” Id. at 5. Defendant's
assertion, however, is unsupported by the record, as the
Court determined the ALJ's ultimate disability
determination may have changed had the ALJ had considered Mr.
Adams' opinion. Dkt. 27, p. 7.
addition, Defendant asserts its litigation position was
substantially justified because Mr. Adams wrote that the
limitations he described applied at the time he wrote the
opinion - in September 2015 - months after Plaintiff's
date last insured of December 31, 2014. Dkt. 32, pp. 6-7. But
as the Court noted in its Order, this argument is
unpersuasive, as Mr. Adams states he had been treating
Plaintiff since July 2014 - a time within the relevant time
period - and compares her symptoms to that time. Dkt. 27, p.
6. As such, Defendant's argument that Mr. Adams'
opinion was irrelevant to the relevant time period was not
reasonable in law or fact. See Toebler, 749 F.3d at
833 (citations omitted) (finding the government not
substantially justified in arguing a lay witness's
statement from 2001 was irrelevant, even though the relevant
period ended in 1999, because the witness's statement
“that [the claimant] was incapable of working in 2001
is relevant to his ability to work in 1999”); see
also Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1996)
(citation and internal quotation marks omitted)
(“medical evaluations made after the expiration of a
claimant's insured status are relevant to an evaluation
of the preexpiration condition”). Further, the
Government's litigation position was not substantially
justified because it assumed, without any support from the