United States District Court, E.D. Washington
ORDER GRANTING IN PART AND DENYING IN PART
COMMISSIONER'S MOTION FOR RECONSIDERATION
Rosanna Malouf Peterson United States District Judge.
THE COURT is a motion for reconsideration by the Commissioner
of Social Security (the “Commissioner”), ECF No.
24, of the Court's March 15, 2019 order granting
Plaintiff Ashley B.'s motion for Equal Access to Justice Act
(“EAJA”) fees. See also ECF No. 23. The
Court has reviewed the Commissioner's motion, the record,
and is fully informed. The Court finds that the
Commissioner's motion for reconsideration is well taken,
as the Court inadvertently decided Plaintiff's motion for
EAJA fees before the Commissioner's full opportunity to
respond pursuant to LCivR 7 had expired. However, the
Court does not find that the Commissioner's position in
the underlying Social Security benefits appeal was
“substantially justified, ” and, therefore,
leaves the order awarding EAJA fees to Plaintiff's
EAJA mandates that a court “award to a prevailing party
. . . fees and other expenses . . . incurred by that party in
any civil action . . . including proceedings for judicial
review of agency action, brought by or against the United
States in any court having jurisdiction of that
action.” 28 U.S.C. § 2412(d)(1)(A). To be a
“prevailing party” the party must prove that the
action “resulted in a ‘material alteration of the
legal relationship of the parties' and that the
alteration was ‘judicially sanctioned.'”
Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007)
(quoting Buckhannon Bd. & Care Home, Inc. v. W.Va.
Dep't of Health & Human Res., 532 U.S. 598,
604-05 (2001)). “[W]hen remand is based on a legal
defect in the agency's decision, the remand order can be
sufficient to confer prevailing party status.” Wood
v. Burwell, 837 F.3d 969, 974 (9th Cir. 2016). A fee
award is inappropriate if “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).
Commissioner has the burden of demonstrating that the
agency's position is substantially justified. Flores
v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995). The
test focuses on whether a “‘reasonable person
could think'” that the agency's position on the
issue on which the claimant earned remand was correct.
Herron v. Astrue, No. 07-623 HG-BMK, 2012 U.S. Dist.
LEXIS 75480, at *13 (D. Haw. May 31, 2012) (quoting
Pierce v. Underwood, 487 U.S. 552, 566 n. 2 (1988)).
Court adopted the Report and Recommendation of United States
Magistrate Judge Mary K. Dimke to grant Plaintiff's
summary judgment motion, deny the Commissioner's summary
judgment motion, and remand the case for further
administrative proceedings. ECF Nos. 17 and 20. In adopting
Judge Dimke's Report and Recommendation, the Court
overruled the Commissioner's objection that the
administrative law judge (“ALJ”) had permissibly
neglected to incorporate a psychologist's opinion that
Plaintiff requires “tolerant and supportive supervisors
and coworkers” into Plaintiff's residual functional
capacity (“RFC”), or into a question to the
vocational expert. ECF No. 19 at 2-3; see also ECF
No. 20 at 2. The Court agreed with Judge Dimke that the
psychologist's opinion, which the ALJ had otherwise
credited, was expressed as a functional limitation and could
not be disregarded in formulating the RFC. ECF No. 20 at 2-3.
must include in the RFC determination, and must incorporate
into the hypothetical scenario posed to the vocational
expert, any functional limitation that is supported by
substantial evidence. See Ryan v. Comm'r, 528
F.3d 1194, 1199-1202 (9th Cir. 2008); see also Carroll v.
Colvin, No. 3:15-CV-5526-DWC, 2016 U.S. Dist. LEXIS
73488 at * 9 (W.D. Wash. June 6, 2016) (finding that an
opinion that “Plaintiff had difficulty in her ability
to sustain a daily and weekly work schedule without
interruption from her psychological symptoms is precisely the
sort of concrete, vocationally-relevant functional
restriction an ALJ should consider when formulating an RFC
and propounding hypotheticals to a vocational
the Court does not find that the Commissioner's position
had “a reasonable basis both in law and fact.”
Decker v. Berryhill, 856 F.3d 659, 664 (9th Cir.
2017) (internal quotation omitted).
IT IS HEREBY ORDERED that the
Commissioner's Motion for Reconsideration of the
Court's Order Granting Attorney Fees, ECF No.
24, is GRANTED IN PART with respect
to revisiting the Court's analysis of Plaintiff's
motion for EAJA fees, ECF No. 22, and DENIED IN
PART with respect to revoking the award of EAJA
IS SO ORDERED. The District Court Clerk is directed
to enter this Order, provide copies to counsel, and
close this case.
 In the interest of protecting
Plaintiff's privacy, the Court uses Plaintiff's first
name and last initial only.
 Plaintiff filed her EAJA fees motion
on March 7, 2019, noted her motion for hearing on March 11,
2019, and the Court issued its EAJA fees order on March 15,
2019. ECF Nos. 22 and 23. According to LCivR 7(c)(2)(B), the