United States District Court, W.D. Washington, Tacoma
ORDER GRANTING PLAINTIFF'S MOTION FOR EAJA FEES
L. ROBART UNITED STATES DISTRICT JUDGE
matter is before the court on Plaintiff Kari Moon's
motion for attorneys' fees and expenses pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412. (Mot. (Dkt. # 24).) The court adopted Magistrate
Judge Theresa Fricke's report and recommendation (R&R
(Dkt. # 17)), reversing and remanding this matter for further
administrative proceedings on February 20, 2018. (Order (Dkt.
# 22).) Ms. Moon now seeks to recover her attorneys' fees
and expenses, in the amount of $3, 783.97. (Mot. at 1.)
Defendant Nancy A. Berryhill (the “Commissioner”)
opposes Ms. Moon's motion. (Resp. (Dkt. # 26).) For the
reasons discussed below, the court GRANTS the motion. //
Moon filed for supplemental security income benefits alleging
a disability onset date of July 22, 2009. (R&R at 1.) An
ALJ conducted a hearing on June 15, 2016, at which Ms. Moon
and a vocational expert (“VE”) testified.
(Id.) On October 4, 2016, the ALJ issued a decision
finding that Ms. Moon had a number of severe impairments, and
set forth a residual functional capacity (“RFC”)
that limited Ms. Moon to, among other things, jobs that give
her “the ability to alternate positions from sitting to
standing or from standing to sitting.” (Id. at
2, 4.) Based on this RFC and testimony from the VE, the ALJ
found that Ms. Moon could perform jobs existing in
significant numbers in the national economy, and therefore
was not disabled. (Id. at 2.)
Moon appealed the ALJ's decision, arguing that the ALJ
erred: (1) in evaluating the medical opinion evidence; (2) in
assessing Ms. Moon's RFC; and (3) in finding that Ms.
Moon could perform jobs existing in significant numbers in
the national economy. (Moon Op. Br. (Dkt. # 14) at 1, 4-9.)
November 13, 2017, Magistrate Judge Fricke issued a report
and recommendation finding that the ALJ erred in assessing
Ms. Moon's RFC, and in finding that Ms. Moon could
performs jobs existing in significant numbers in the national
economy, but that the ALJ did not err in evaluating the
medical opinion evidence. (R&R at 2.) Magistrate Judge
Fricke held that the ALJ failed to fully address in the RFC
how often Ms. Moon must change between sitting and standing.
(Id. at 3-5.) Magistrate Judge Fricke further held
that the ALJ erred in finding that Ms. Moon could perform
jobs existing in significant numbers in the national economy
because (a) the ALJ relied on the erroneous RFC, and (b) the
ALJ failed to adequately resolve a conflict between the
VE's testimony and the Dictionary of Occupational Titles
(“DOT”). (Id. at 6-11.) The VE had
testified that the DOT does not address sit/stand options,
and stated that her testimony about jobs available to Ms.
Moon based on a requirement to alternate between sitting and
standing was thus based on the VE's own experience.
(Id. at 8.) Magistrate Judge Fricke held that the
VE's qualifications alone “[did] not by itself
amount to a reasonable explanation for the deviation from the
DOT in the VE's testimony”; the VE did not identify
any research data she had considered in reaching her job
estimates, nor any particular knowledge she had from her
experience that gave her a foundation on which to to opine
about the number of jobs available that would accommodate a
sit/stand alternation limitation. (Id. at 9-10.)
court issued an order adopting Magistrate Judge Fricke's
report and recommendation on February 20, 2018. (Order.) The
court made only one clarification, stating that the ALJ must
specify how often Ms. Moon must change between sitting and
standing based on Social Security Ruling (“SSR”)
83-12, rather than SSR 96-9p, on which Magistrate Judge
Fricke had relied. (Id. at 2-4.)
court has discretion to grant or deny a request for
attorneys' fees and costs pursuant to the EAJA.
Pierce v. Underwood, 487 U.S. 552, 562-63 (1988).
The EAJA authorizes payment of attorneys' fees to a
prevailing party in an action against the United States,
unless the court finds that the government's position on
the merits in the litigation was “substantially
justified.” 28 U.S.C. § 2412(d)(1)(A). The
Commissioner does not contest that Ms. Moon is the prevailing
party, and thus the only issue before the court is whether
the government's position was substantially justified.
Commissioner bears the burden of proving that her position
was substantially justified. Tobeler v. Colvin, 749
F.3d 830, 832 (9th Cir. 2014) (citing Meier v.
Colvin, 727 F.3d 867, 869-70 (9th Cir. 2013)). To meet
her burden, the Commissioner must demonstrate that her
position had a reasonable basis in both law and fact at each
stage of the proceedings. Tobeler, 749 F.3d at 832.
“The ‘position of the United States' includes
both the government's litigation position and the
underlying agency action giving rise to the civil
action.” Meier, 727 F.3d at 870. The
government must therefore show that both the ALJ's
underlying decision and the government's position in
defending the ALJ's decision had a reasonable basis in
law and fact.
government's position lacks a reasonable basis in law
when it is contrary to clearly established law. See,
e.g., Tobeler, 749 F.3d at 832-33 (finding
underlying agency action lacked a reasonable basis in law
because, contrary to Ninth Circuit law, the ALJ disregarded
lay testimony without comment). The government's position
has a reasonable basis in fact if the ALJ's reasoning is
supported by the evidence of record. A holding that the
agency decision is unsupported by substantial evidence is a
“strong indication” that the government's
position was not substantially justified. Thangaraja v.
Gonzales, 428 F.3d 870, 874 (9th Cir. 2005). “[I]t
will be only a ‘decidedly unusual case in which there
is substantial justification under the EAJA even though the
agency's decision was reversed as lacking in reasonable,
substantial and probative evidence in the record.'”
Id. (quoting Al-Harbi v. I.N.S., 284 F.3d
1080, 1085 (9th Cir. 2002)).
Commissioner argues that her positions on both issues on
which she lost were substantially justified because courts
have found in her favor on similar arguments in the past.
(Resp. at 2-4.) First, she argues that the ALJ's failure
to identify how frequently Ms. Moon must be allowed to
alternate between sitting and standing (and the
government's litigation of the ALJ's action) had a
reasonable basis in law and fact because courts in other
cases have found that ALJs are not required to specify how
frequently a claimant must alternate between sitting and
standing in the RFC. (Id. at 2-3.) Second, she
argues that the ALJ adequately relied on the VE's
statement that her deviation from the DOT was based on her
experience because, again, other courts have found it
sufficient to rely on a VE's experience in explaining a
departure from the DOT. (Id. at 3-4.)
crux of the error in the ALJ's decision is that he failed
to elicit adequate testimony from the VE or set forth
substantial evidence to support his ultimate disability
determination. (See R&R at 3-11.) By failing to
state the frequency at which Ms. Moon must be allowed to
alternate between sitting and standing, the ALJ left the
record devoid of evidence showing Ms. Moon could perform any
jobs existing in significant numbers in the national economy.