United States District Court, W.D. Washington, Seattle
KARENA J. GERDE, 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, expenses, and costs
pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412. Dkt. 27. She seeks $13, 746.54 in attorney fees,
$31.82 in expenses, and $238.40 in costs. The Commissioner
contends that Plaintiff's motion should be denied because
the Social Security Administration's position was
substantially justified. The Court, for the reasons set forth
below, DENIES IN PART Plaintiff's motion as to fees and
expenses, but GRANTS IN PART the motion as to costs, per the
Ninth Circuit's order.
EAJA, a court awards fees and expenses to a prevailing
party in a suit against the government unless it concludes
that 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 via the Ninth Circuit, Plaintiff is
unquestionably 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
Commissioner argues Plaintiff is not entitled to attorney
fees because the ALJ's decision and the Social Security
Administration's position in opposing the remand were
both substantially justified, as demonstrated by the
undersigned's order affirming the Commissioner's
final decision, which was subsequently reversed and remanded
by the Ninth Circuit. See Dkt. 16, 20, 28.
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)).
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).
case, Plaintiff raised a number of challenges to the
ALJ's decision, specifically with respect to the
ALJ's assessment of certain medical opinions, her own
subjective testimony, and lay statements. See Dkt.
11. The undersigned affirmed the ALJ's decision. Dkt. 16.
Plaintiff appealed to the Ninth Circuit, challenging the same
evidence there that she had challenged before the
undersigned. The Ninth Circuit found error in the ALJ's
decision with respect to the opinion of examining
psychologist Scott Alvord, Psy.D., which also led to error in
the ALJ's assessment of lay witness statements. Dkt. 20.
The Ninth Circuit affirmed the ALJ's decision in all
other respects. Id.
the Ninth Circuit found that the ALJ erred in assessing Dr.
Alvord's opinion, and thereby erred in assessing lay
evidence, these findings of error do not establish that
either the ALJ's decision or the Commissioner's
litigation position was not reasonable. See Campbell v.
Astrue, 736 F.3d 867, 869 (9th Cir. 2013) (“[T]his
circuit has never stated that every time this court
reverses and remands the ALJ's decision for lack of
substantial evidence the claimant should be awarded
attorney's fees.”). Indeed, an examination of the
Ninth Circuit's disposition of this case leads the
undersigned to conclude that the ALJ's decision
nonetheless had a reasonable basis in fact in law, and that
the Commissioner was reasonable in defending the decision in
discounted Dr. Alvord's opinion because he did not opine
as to Plaintiff's functional limitations, but
conclusorily stated that she was unable to work, which
pertains to an issue reserved to the Commissioner.
(Administrative Record (AR) 25.) The ALJ also noted that Dr.
Alvord's notes and examination findings indicate that
Plaintiff can perform simple tasks, which he found contrary
to Dr. Alvord's conclusion that she could not work.
(Id.) The ALJ also found that Dr. Alvord's
opinion describing Plaintiff's cognitive limitations as
moderate to severe was inconsistent with treatment notes from
treating physicians, namely Plaintiff's primary care
physician and emergency department physicians. (Id.)
Lastly, the ALJ found that Dr. Alvord's Global Assessment
of Functioning (GAF) score was entirely unexplained.
Ninth Circuit found that the ALJ erred in discounting Dr.
Alvord's opinion, emphasizing that his opinion was
“not contradicted by any other mental health
professionals who treated, evaluated, or examined [Plaintiff]
for mental limitations.” Dkt. 20 at 4. But Plaintiff
did not apparently receive any mental health treatment or
other evaluations or examinations, and Dr. Alvord's
unique role in Plaintiff's medical record does not
necessarily imbue his opinion with more probative value or
suggest that it cannot be discounted for specific, legitimate
reasons. The ALJ reasonably considered whether Dr.
Alvord's opinion was consistent with the remainder of the
record, citing the treatment notes of Plaintiff's primary
care physician, to whom Plaintiff reported memory problems,
and noted that this doctor described Plaintiff's
immediate recall of memory to be “good.”
(See AR 340.) The ALJ also cited emergency
department notes, which explicitly indicated no cognitive
dysfunction. (AR 244, 251, 354, 364, 382, 389.) Because
primary care physicians are qualified to treat and/or opine
as to a claimant's mental limitations, the ALJ's
decision and the Commissioner's defense thereof were
reasonable and therefore substantially justified. See,
e.g., Sprague v. Bowen, 812 F.2d 1226, 1232
(9th Cir. 1987) (noting that primary care physicians treat
the majority of Americans' psychiatric disorders, and
thus are qualified to opine as to the claimant's mental
although the Ninth Circuit found that Dr. Alvord had,
contrary to the ALJ's decision, “provided a
narrative of his findings to support his ultimate opinion
that, due to her mental limitations, [Plaintiff] could not
function in an occupational setting[, ]” it was
reasonable for the ALJ and the Commissioner to focus on the
fact that Dr. Alvord's opinion, although written in
“narrative” format, does not discuss or identify
any particular functional limitations. The lack of
specificity as to functional limitations is a legitimate
reason to discount a medical opinion. See, e.g.,
Morgan v. Comm'r of Social Sec. Admin., 169 F.3d
595, 601 (9th Cir. 1999) (affirming an ALJ's discounting
of a medical opinion because the doctor's “reports
do not show how [plaintiff's] symptoms translate into
specific functional deficits which preclude work
activity”). Dr. Alvord's opinion does include a
narrative section entitled “Diagnostic Impressions,
” but this section does not mention any particular
functional limitations beyond a global memory impairment. (AR
265.) Without a description of Plaintiff's specific
functional limitations, Dr. Alvord's opinion does not
assist the ALJ in assessing Plaintiff's residual
functional capacity on a function-by-function basis, and it
was reasonable for the ALJ to discount the opinion on that
basis and for the Commissioner to defend the ALJ's
discussed above, the ALJ also provided other reasons not
addressed by the Ninth Circuit for discounting Dr.
Alvord's opinion: the ALJ reasonably found that Dr.
Alvord's conclusion was contradicted by his notes
indicating that Plaintiff can perform simple tasks, and that
Dr. Alvord's GAF score was unexplained. Because the scope
of the Ninth Circuit's opinion permits the undersigned to
find that the ALJ's decision and the Commissioner's
defense thereof was nonetheless reasonable, even though the
Ninth Circuit found error in the ALJ's decision, both the
ALJ's decision and the Commissioner's litigation
position were “justified to the degree that could
satisfy a reasonable person.” Pierce, 487 U.S.
at 565; see also Burke v. Berryhill, 714 Fed.Appx.
753, 753 (9th Cir. Mar. 7, 2018) ...