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Henry v. Berryhill

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

June 4, 2018

CHRISTINA SUE HENRY, Plaintiff,
v.
NANCY A BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER GRANTING MOTION FOR ATTORNEY'S FEES

          David W. Christel United States Magistrate Judge.

         Plaintiff Christina Sue Henry filed a Motion for Attorney Fees and Costs under EAJA, seeking attorney's fees under the Equal Access to Justice Act (“EAJA”). Dkt. 13. Defendant asserts her position in this matter was substantially justified and requests no fee be awarded. Dkt. 14. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 3.

         The Court concludes Defendant's position was not substantially justified. Accordingly, Plaintiff's Motion is granted.

         I. Background and Procedural History

         On March 1, 2018, the Court found the ALJ erred by failing to properly consider Plaintiff's subjective symptom testimony. Dkt. 11. The Court found the error was harmful, 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.

         On May 3, 2018, Plaintiff filed the Motion. Dkt. 13. Defendant filed a Response, Dkt. 14, and Plaintiff filed a Reply. Dkt. 15.

         II. 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.

         A. 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. 11, 12. To award a prevailing plaintiff attorney's fees, the EAJA also requires finding 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.” Guiterrez 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. Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quoting Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013)). The Court notes the Administration does not have to prevail on the merits for the Court to conclude the Administration's position was substantially justified. See Kali, 854 F.2d at 334.

         Here, the Court concluded the ALJ erred when he failed to provide clear and convincing reasons for discounting Plaintiff's subjective symptom testimony. Dkt. 11. The Court found the ALJ failed to explain her findings and consider evidence in the record. Id. The Court also found the ALJ's findings were not supported by the record. See id. Due to the ALJ's harmful errors, the Court reversed the ALJ's decision denying benefits and remanded the case for further proceedings. Id.

         This is not the exceptional case where the subtle differences between the substantial evidence and substantial justification standards merit remand and reversal without awarding attorney fees and costs. Instead, this Court's “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.” Meier, 727 F.3d at 872. Further, there are no special circumstances that render an EAJA award unjust.

         The Court is not persuaded by Defendant's Response to the Motion. See Dkt. 14. The Court finds Defendant is attempting to re-litigate issues raised in the briefing on the merits of this case, and she selectively cites to ...


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