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Wheatley v. Berryhill

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

May 14, 2018

NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.


          Mary Alice Theiler United States Magistrate Judge


         Plaintiff filed a motion for attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. (Dkt. 26.) She seeks $18, 957.02 in fees, $109.63 in expenses, and $631.19 in costs, for a total of $19, 697.84.[1] The Commissioner does not oppose the request for costs, but argues plaintiff is not entitled to EAJA fees because the government was substantially justified. (Dkt. 27.) The Court, for the reasons set forth below, concludes plaintiff's motion for costs should be GRANTED and her motion for EAJA fees should be DENIED.


         Under EAJA, a court[2] 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). This Court affirmed the ALJ's decision (Dkt. 17), and the Ninth Circuit reversed and remanded for further administrative proceedings (Dkt. 23). Having secured a remand, 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. The Court herein addresses substantial justification.

         The 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)). The decision to grant or deny EAJA fees lies within the discretion of the Court. Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995).

         In 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).

         Where 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)). In that situation, fees are awarded even if the litigation position of the government may have been justified. Tobeler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014). 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 (quoting Flores, 49 F.3d at 564). Accord Gardner v. Berryhill, 856 F.3d 652, 656-57 (9th Cir. 2017)).

         In this case, the Ninth Circuit found the ALJ erred in failing to provide specific and legitimate reasons for assigning little weight to the opinion of examining rheumatologist Dr. Steven Overman, and erred in giving little weight to the lay testimony of plaintiff's husband, Art Wheatley. (Dkt. 23.) The Ninth Circuit otherwise affirmed the decision of this Court and, upon concluding it was not clear benefits were warranted, remanded for further proceedings.

         The Commissioner opposes the request for EAJA fees, maintaining substantial justification. “The government's failure to prevail does not raise a presumption that its position was not substantially justified.” Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988) (citing Petition of Hill, 775 F.2d 1037, 1042 (9th Cir. 1985)). The Court here concludes that, despite the errors, both the ALJ's decision and the Commissioner's litigation position were substantially justified. 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.”). See also Flores, 49 F.3d at 567 (while the EAJA creates a presumption fees will be awarded to a prevailing party, an award of fees is not mandatory).

         A. Dr. Overman's Opinion

         Dr. Overman opined: “Due to the combined effects of her postsurgical changes of her hands and arms, active inflammatory disease, severe depression, and her osteoarthritic change in her right knee, [plaintiff] is not a candidate for any type of gainful employment at this time.” (Administrative Record (AR) 415.) The ALJ assigned this 2013 opinion little weight because Dr. Overman appeared to rely solely on plaintiff's subjective complaints, rather than his own examination, which revealed some tenderness in plaintiff's hands, shoulder, ankles, and knees, but normal range of motion in the hips. (AR 22.) The ALJ found no other physical findings noted and no evidence of any loss of sensation, reflexes, or strength. The ALJ also found plaintiff's report of “‘limitation in nineteen out of twenty activities of daily living'” inconsistent with reports she made elsewhere in the record, including her 2012 report she was able to watch her ten-month-old grandson, do housework, and complete activities of self-care independently and in a timely manner. (Id. (citing AR 292-93).)

         This Court found the ALJ overstated Dr. Overman's reliance on subjective reporting, but deemed the error harmless. (Dkt. 17.) The Court concluded the ALJ rationally interpreted the opinion as relying in large part on plaintiff's subjective reporting and accounted for plaintiff's shoulder and knee problems by including relevant limitations in the RFC. The Court also found a rational perception of inconsistency in plaintiff's reporting.

         The Ninth Circuit reversed, concluding: “Because Dr. Overman examined plaintiff and administered an ultrasound test, he did not rely ‘solely' on Wheatley's subjective complaints to support his functional assessments, diagnoses and other findings, so the ALJ's characterization of the extent of his reliance is error.” (Dkt. 23 at 2.) It was not clear if Dr. Overman's opinion regarding limitations in nineteen out of twenty activities of daily living came from plaintiff's report, as the ALJ found, or whether Dr. Overman came to this conclusion on his own. The Ninth Circuit found further error in the ...

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