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Meeker v. Berryhill

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

April 25, 2018

MARY A. MEEKER, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER

          David W. Christel United States Magistrate Judge

         Plaintiff 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.

         The 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 granted-in-part.

         BACKGROUND

         On 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.[1] 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.

         On 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.

         DISCUSSION

         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. 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).

         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.” 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.

         In this 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.

         Defendant 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.

         In 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 ...


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