United States District Court, W.D. Washington, Seattle
ORDER RE: MOTION FOR EQUAL ACCESS TO JUSTICE ACT
Alice Theiler United States Magistrate Judge
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. 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.
EAJA, a court 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.
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).
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).
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)).
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.
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).
Dr. Overman's Opinion
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).)
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.
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 ...