Herron v. Astrue

Filing 76

ORDER DENYING PLAINTIFF'S OBJECTIONS TO THE FINDINGS AND RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE REGARDING PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (DOC. 66 ) AND ADOPTING THE MAGISTRATE JU DGE'S FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (DOC. 65 ). Signed by JUDGE HELEN GILLMOR on 5/31/2012. ~ Although the Ninth Circuit Court of A ppeals concluded that the ALJ's disability determination was not supported with substantial evidence, a review of the record indicates that the ALJs decision had a basis in law and fact. The ALJ's decision, and the Commissioners support the reof, was substantially justified. Pursuant to the EAJA, the Plaintiff is not entitled to attorneys' fees. (1) PLAINTIFFS OBJECTIONS TO THE FINDINGS AND RECOMMENDATIONSOF THE U.S. MAGISTRATE JUDGE REGARDING PLAINTIFF'S APPLICATION FOR ATTOR NEYS' FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (Doc. 66), filed March 21, 2012, are DENIED. (2) The Magistrate Judge's FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S APPLICATION FOR ATTORNEYS' FEES UNDER THE EQUAL ACCESS TO JUS TICE ACT (Doc. 65), filed February 29, 2012, are ADOPTED. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JAMES Y. HERRON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

Civ. No. 07-00623 HG-BMK

ORDER DENYING PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND
RECOMMENDATION OF THE U.S. MAGISTRATE JUDGE REGARDING PLAINTIFF’S
APPLICATION FOR ATTORNEYS’ FEES UNDER THE EQUAL ACCESS TO JUSTICE
ACT (DOC. 66)
AND
ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION TO
DENY PLAINTIFF’S APPLICATION FOR ATTORNEYS’ FEES UNDER THE EQUAL
ACCESS TO JUSTICE ACT (DOC. 65)
Plaintiff James Y. Herron filed an application for
disability insurance benefits with the Social Security
Administration.

An Administrative Law Judge conducted a hearing

on the application and concluded that the Plaintiff was not
disabled.

The Plaintiff appealed the decision to this Court.

After carefully considering the evidence, the Court affirmed the
Administrative Law Judge’s decision and entered judgment for the
Commissioner of Social Security.

1

On appeal, the Ninth Circuit Court of Appeals reversed.

The

Ninth Circuit Court of Appeals held that the Administrative Law
Judge’s decision was not supported by substantial evidence.

The

matter was remanded to the Commissioner to reevaluate the
Plaintiff’s disability determination.
The Plaintiff filed an application for attorneys’ fees
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.
The Magistrate Judge, upon careful review of the administrative
record and the parties’ filings, concluded that the Plaintiff was
not entitled to attorneys’ fees and recommended the Plaintiff’s
application be denied.

The Plaintiff objects to the Magistrate

Judge’s Findings and Recommendation.
PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND RECOMMENDATION OF
THE U.S. MAGISTRATE JUDGE REGARDING PLAINTIFF’S APPLICATION FOR
ATTORNEYS’ FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT” (Doc. 66),
filed March 21, 2012, are DENIED.
The Magistrate Judge’s FINDINGS AND RECOMMENDATION TO DENY
PLAINTIFF’S APPLICATION FOR ATTORNEYS’ FEES UNDER THE EQUAL
ACCESS TO JUSTICE ACT (Doc. 65), filed February 29, 2012, are
ADOPTED.
PROCEDURAL HISTORY
On February 22, 2005, Plaintiff James Y. Herron filed an
application for Social Security Disability Insurance Benefits.
(Administrative Record (“AR”) at 52-56.)
2

On March 7, 2005, Plaintiff’s application was denied by the
Social Security Commissioner. (AR at 22-26.)
On October 26, 2007, the Appeals Council for the Social
Security Administration denied further review of Plaintiff’s
application and rendered a final administrative decision by the
Commissioner of Social Security.

(AR at 4-6.)

On December 27, 2007, Plaintiff sought judicial review of
the Commissioner of Social Security’s final decision to deny
Plaintiff Social Security Disability Benefits in this Court
pursuant to 42 U.S.C. § 405(g).

(Complaint, filed October 26,

2007 (Doc. 1).)
On June 20, 2008, Plaintiff filed a Motion For Summary
Adjudication (Doc. 15.)
On February 19, 2009, the Magistrate Judge filed “FINDINGS
AND RECOMMENDATION TO DENY PLAINTIFF’S MOTION FOR SUMMARY
ADJUDICATION” (Doc. 31).
On June 12, 2009, the Court filed an “ORDER ADOPTING
MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION, (DOC. 31), AS
MODIFIED, TO DENY PLAINTIFF’S MOTION FOR SUMMARY ADJUDICATION”
(Doc. 35).
On August 24, 2009, Plaintiff filed “NOTICE OF APPEAL” to
the Ninth Circuit Court of Appeals.

(Doc. 37.)

On December 22, 2010, the Ninth Circuit Court of Appeals
filed an order reversing this Court’s Order.

3

The Ninth Circuit

Court of Appeals remanded the case to this Court with
instructions to:
[R]emand to the Commissioner for a determination of
whether, in light of the above conclusions, Herron has
the residual functional capacity to perform his past
relevant work as actually performed and/or generally
performed in the national economy, and if not, whether
he can perform other substantial gainful work in the
national economy.
On April 12, 2011, the Ninth Circuit Court of Appeals filed
a formal mandate.

(Doc. 51.)

On May 11, 2011, the matter was remanded to the Commissioner
of Social Security (Doc. 53.)
On July 8, 2011, the Plaintiff filed “PLAINTIFF’S
APPLICATION FOR ATTORNEYS’ FEES UNDER THE EQUAL ACCESS TO JUSTICE
ACT” (Doc. 54).
For several months, the Plaintiff’s Application for
Attorneys’ Fees was delayed while the Court waited for the
administrative record.
On February 29, 2012, the Magistrate Judge filed “FINDINGS
AND RECOMMENDATION TO DENY PLAINTIFF’S APPLICATION FOR ATTORNEYS’
FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT” (Doc. 65).
On March 21, 2012, the Court adopted the Magistrate Judge’s
Findings and Recommendation, having not received any objections
from the parties.

(Order Adopting Magistrate Judge’s Findings

and Recommendation (Doc. 67).)

During the time in which the

Court’s Order had been submitted to the Clerk’s Office for

4

filing, but before the Order had been entered on the CM/ECF
docket, the Plaintiff filed “PLAINTIFF’S OBJECTIONS

TO THE

FINDINGS AND RECOMMENDATIONS OF THE U.S. MAGISTRATE JUDGE
REGARDING PLAINTIFF’S APPLICATION FOR ATTORNEYS’ FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT” (Doc. 66).
Objections were seven days late.

The Plaintiff’s

See Local Rule 74.2.

On March 27, 2012, the Plaintiff filed, “PLAINTIFF’S MOTION
TO VACATE ORDER ADOPTING THE U.S. MAGISTRATE JUDGE’S
RECOMMENDATION TO DENY EAJA PETITION PURSUANT TO LOCAL RULE 60(b)
OR MOTION TO RECONSIDER PURSUANT TO FED. R. CIV. P. 59(e) AND
CONSIDER OBJECTIONS FILED ON MARCH 21, 2012” (Doc. 68).
On April 9, 2012, the Commissioner filed “DEFENDANT’S
OPPOSITION TO PLAINTIFF’S MOTION TO VACATE ORDER ADOPTING THE
U.S. MAGISTRATE JUDGE’S RECOMMENDATION TO DENY EAJA PETITION
PURSUANT TO LOCAL RULE 60(b) OR MOTION TO RECONSIDER PURSUANT TO
FED. R. CIV. P. 59(e) AND CONSIDER OBJECTIONS FILED ON MARCH 21,
2012” (Doc. 70).
On April 18, 2012, the Court granted “PLAINTIFF’S MOTION TO
VACATE ORDER ADOPTING THE U.S. MAGISTRATE JUDGE’S RECOMMENDATION
TO DENY EAJA PETITION PURSUANT TO LOCAL RULE 60(b) OR MOTION TO
RECONSIDER PURSUANT TO FED. R. CIV. P. 59(e) AND CONSIDER
OBJECTIONS FILED ON MARCH 21, 2012” and ordered the Commissioner
to file a Response to “PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND
RECOMMENDATIONS OF THE U.S. MAGISTRATE JUDGE REGARDING

5

PLAINTIFF’S APPLICATION FOR ATTORNEYS’ FEES UNDER THE EQUAL
ACCESS TO JUSTICE ACT” by May 2, 2012.
18, 2012 (Doc. 71).)
Reply by May 9, 2012.

(Minute Order at 3, April

The Plaintiff was given leave to file a
(Id.)

On May 2, 2012, the Commissioner filed “DEFENDANT’S RESPONSE
TO PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND RECOMMENDATIONS OF
THE U.S. MAGISTRATE JUDGE REGARDING PLAINTIFF’S APPLICATION FOR
ATTORNEYS’ FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT” (Doc. 72).
On May 16, 2012, seven days after the date the Plaintiff’s
Reply was due, the Plaintiff filed “PLAINTIFF’S MOTION FOR LEAVE
TO FILE INSTANTE PLAINTIFF’S REPLY IN SUPPORT OF HIS OBJECTIONS
TO THE U.S. MAGISTRATE JUDGE’S RECOMMENDATION TO DENY EAJA
PETITION PURSUANT TO LOCAL RULE 6.2” (Doc. 73).

Attached to the

Plaintiff’s Motion was a proposed Reply.
On May 23, 2012, the Court granted the “PLAINTIFF’S MOTION
FOR LEAVE TO FILE INSTANTE PLAINTIFF’S REPLY IN SUPPORT OF HIS
OBJECTIONS TO THE U.S. MAGISTRATE JUDGE’S RECOMMENDATION TO DENY
EAJA PETITION PURSUANT TO LOCAL RULE 6.2” (Doc. 73) and agreed to
consider the Plaintiff’s Reply.
Pursuant to Local Rule 7.2(d), the Court elected to
decide the Plaintiff’s objections without a hearing.

BACKGROUND
On February 22, 2005, Plaintiff James Y. Herron filed an

6

application for disability insurance benefits with the Social
Security Administration (“SSA”).
at 52-56.)

(Administrative Record (“AR”)

The Plaintiff, a veteran of the United States Air

Force, suffers from Buerger’s disease, pes planus, tarsal tunnel
syndrome, and bilateral tinnitus.

(AR at 18.)

The Plaintiff

alleged that he became disabled on April 1, 2000, shortly after
he was last employed as a disaster site consultant.

(AR at 52.)

Pursuant to Social Security regulations, the Plaintiff’s
eligibility for disability insurance benefits expired on December
31, 2003.

(AR at 15).

To be eligible for disability benefits,

therefore, the Plaintiff had to establish disability on or prior
to December 31, 2003.

(AR at 15.)

On March 7, 2005, the SSA denied the Plaintiff’s application
for disability benefits.

(AR at 20-21.)

The Plaintiff appealed

to an Administrative Law Judge (“ALJ”) and requested a hearing.
(AR at 29-32.)

A hearing was held on April 11, 2006 in which the

ALJ received testimony from the Plaintiff and a vocational
expert.

(AR at 294.)

On May 23, 2006, the ALJ issued a written

decision denying disability insurance benefits for the Plaintiff.
(AR 14-19.)

The ALJ determined that the Plaintiff was not

disabled because the Plaintiff retained the residual functional
capacity to return to his previous employment as a disaster site
consultant.

(AR 17-19.)

The ALJ also concluded that the

Plaintiff’s testimony was not entirely credible.

7

(AR at 17.)

The Plaintiff appealed the ALJ’s decision to the Appeals
Council for the Social Security Administration (“SSA Appeals
Council”).

On October 26, 2007, the SSA Appeals Council denied

further review of Plaintiff’s application and rendered a final
administrative decision by the Commissioner of Social Security
(“Commissioner”).

(AR at 4-6.)

On December 27, 2007, the Plaintiff filed a Complaint in
this Court challenging the Commissioner’s determination to deny
disability benefits to the Plaintiff.

After reviewing the ALJ’s

decision and the administrative record, the then-Magistrate Judge
Leslie E. Kobayashi issued a Findings and Recommendation on
February 19, 2009.

Judge Kobayashi’s Findings and Recommendation

concluded that substantial evidence in the record supported the
ALJ’s determination and recommended affirming the ALJ’s decision.
On June 12, 2009, after considering objections by the Plaintiff,
the Court adopted as modified the Magistrate Judge’s Findings and
Recommendation and entered judgment in favor of the Commissioner.
The Plaintiff appealed to the Ninth Circuit Court of
Appeals.

On December 22, 2010, a Ninth Circuit Panel reversed

the Court’s judgment.

The Ninth Circuit Panel concluded that:

(1) substantial evidence did not support the ALJ’s findings that
the Plaintiff retained the residual functional capacity to return
to his part occupation as a disaster site consultant; (2)
substantial evidence did not support the ALJ’s findings that the

8

Plaintiff’s testimony was not entirely credible; and (3) the ALJ
erroneously evaluated the medical evidence in the record.

See

Herron v. Astrue, 407 Fed. Appx. 139, 140-41 (9th Cir. 2010).
The case was remanded to this Court with instructions to remand
the matter to the Commissioner.

Id. at 141.

On July 8, 2011, the Plaintiff filed an application for
attorneys’ fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412.

Magistrate Judge Barry M. Kurren, upon careful

review of the administrative record and the parties’ filings,
concluded that the Plaintiff was not entitled to attorneys’ fees
and recommended the Plaintiff’s application be denied.

The

Plaintiff objects to the Magistrate Judge’s Findings and
Recommendation.
STANDARD OF REVIEW
Title 28 U.S.C. § 636(b)(1)(B) permits a district court
judge to designate a magistrate judge to determine matters
pending before the court and to submit to the district court
judge a findings and recommendation.

Pursuant to Local Rule

74.2, any party may object to a magistrate judge’s findings and
recommendation.

The district court judge shall make a de novo

determination of those portions of the findings and
recommendation to which a party properly objects and may accept,
reject, or modify, in whole or in part, the findings and
recommendation made by the magistrate judge.

9

Id.

The Ninth

Circuit Court of Appeals, in Dawson v. Marshall, held that de
novo review means the district court judge does not defer to the
magistrate judge’s ruling but freely considers the matter anew,
as if no decision had been rendered below.

561 F.3d 930, 933

(9th Cir. 2009) (internal citation omitted).

ANALYSIS
The Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d)(1)(A) states that:
“[A] court shall award to a prevailing party other than
the United States fees and other expenses . . .
incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for
judicial review of agency action, brought by or against
the United States in any court having jurisdiction of
that action, unless the court finds that the position
of the United States was substantially justified or
that special circumstances make an award unjust.”
The EAJA is an exception to the American rule.

It authorizes

fee-shifting to a prevailing party under specific circumstances.
Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010).

Unlike

the English rule, however, fee-shifting pursuant to the EAJA is
not mandatory.

Id.

Attorney’s fees are not available to the

prevailing party if the position asserted by the United States
was “substantially justified.”

Flores v. Shalala, 49 F.3d 562,

567 (9th Cir. 1995) (quoting 28 U.S.C. § 2412(d)(1)).

The burden

rests with the government to establish that its position was
substantially justified.

Hardisty, 592 F.3d at 1076 n.2 (citing

10

Flores, 49 F.3d at 569).
In the context of a Social Security disability
determination, the Ninth Circuit Court of Appeals has held that
“district courts should focus on whether the government’s
position on the particular issue on which the claimant earned
remand was substantially justified, not on whether the
government's ultimate disability determination was substantially
justified.”
at 569).

Hardisty, 592 F.3d at 1078 (citing Flores, 49 F.3d

Substantial justification for the purposes of the EAJA

“does not mean ‘justified to a high degree,’ but simply entails
that the government must show that its position meets the
traditional reasonableness standard - that it is ‘justified in
substance or in the main,’ or ‘to a degree that could satisfy a
reasonable person.”

Corbin v. Apfel, 149 F.3d 1051 (9th Cir.

1998) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
The Commissioner’s position is “substantially justified” when the
position has a “reasonable basis in law and fact.”
U.S. at 566 n.2; Hardisty, 592 F.3d at 1079.

Pierce, 487

A position can be

substantially justified pursuant to the EAJA even when the
position is ultimately incorrect.

Pierce, 487 U.S. at 566 n.2.

The test for determining whether a position was substantially
justified, therefore, focuses on whether “a reasonable person
could think it correct.”

Id.

If “there is a genuine dispute”

between reasonable minds then the position is “substantially

11

justified” pursuant to the EAJA.

Id. at 565.

In this case, the Plaintiff prevailed on three issues before
the Ninth Circuit Court of Appeals.

The Ninth Circuit Panel

concluded that: (1) substantial evidence did not support the
ALJ’s findings that the Plaintiff retained the residual
functional capacity to return to his past occupation; (2)
substantial evidence did not support the ALJ’s findings that the
Plaintiff’s testimony was not entirely credible; (3) the ALJ
erroneously evaluated the medical evidence in the record.
Herron, 407 Fed. Appx. at 140-41.

See

The Plaintiff claims that the

Commissioner’s position with regard to these three issues was not
substantially justified and that, pursuant to the EAJA, the
Plaintiff is entitled to attorneys’ fees.
(A)

Prior Judicial Determinations Are Relevant But Not
Dispositive
The Court may consider the Commissioner’s prior successes in

determining whether the Commissioner’s positions were
substantially justified.

Pierce, 487 U.S. at 569 (“[A] string of

losses can be indicative; and even more so a string of
successes.”).

The United States Supreme Court and the Ninth

Circuit Court of Appeals warn, however, that “the fact that one
other court agreed or disagreed with the Government does not
establish whether its position was substantially justified.”
Pierce, 487 U.S. at 569; Lewis v. Barnhart, 281 F.3d 1081, 1084
(9th Cir. 2002).
12

The Plaintiff objects to the Findings and Recommendation
because the Magistrate Judge noted, in support of its conclusion
that the Commissioner was substantially justified, that the ALJ,
Magistrate Judge, and District Court Judge all believed there was
substantial evidence to support the ALJ’s decision.

While this

fact is not dispositive, it does lend weight to the conclusion
that the Commissioner’s support of the ALJ’s decision was
substantially justified.

See also Kali v. Bowen, 854 F.2d 329,

332 (9th Cir. 1988) (“Perhaps the most important of these
extraneous circumstances will be the existence of precedents
construing similar statutes or similar facts.”).

More important

than any prior judicial determination, however, are the merits of
the ALJ’s decision and whether the decision had a reasonable
basis in law and fact.

See Pierce, 487 U.S. at 566 n.2;

Hardisty, 592 F.3d at 1079.
(B)

ALJ’s Finding that Plaintiff Retained the Residual
Functional Capacity to Return to His Prior Occupation Was
Substantially Justified
Agency regulations define “past relevant work” as “work that

you have done within the past 15 years, that was substantial
gainful activity, and that lasted long enough for you to learn to
do it.”

20 C.F.R. § 404.1560(b)(1).

The ALJ found that

Plaintiff’s work as a disaster site consultant occurred within
the past fifteen years, constituted substantial gainful activity,
and lasted long enough for Plaintiff to learn the job.
13

(AR at

18.)

The ALJ also found that Plaintiff’s “past relevant work as

consultant did not require the performance of work-related
activities precluded by his residual functional capacity.”
at 19.)

(AR

Based on these findings, the ALJ concluded that

Plaintiff “could return to his past relevant work as a consultant
as previously performed and as generally performed in the
national economy.”

(AR at 18.)

When the matter came before the Ninth Circuit Court of
Appeals, the three-judge panel held that substantial evidence did
not support the ALJ’s finding “because the ALJ erroneously failed
to take into account the actual physical demands of Herron’s past
work and compare such demands with Herron’s present physical
capacity.”

Herron, 407 Fed. Appx. at 141.

The panel reasoned

that the ALJ’s determination of the physical demands required of
a disaster site consultant and its comparison to the actual
physical limits of the Plaintiff were insufficient.

Id.

The

panel believed that the ALJ relied too heavily on an
overgeneralized definition of “consultant” which, considering the
particulars of the Plaintiff’s past employment, were not
appropriate.

Id.

Although the ALJ’s residual functional capacity finding was
in error, the Commissioner argues that its position in support of
the ALJ’s finding was substantially justified, i.e., had a
“reasonable basis in law and fact[.]”

14

Pierce, 487 U.S. at 566

n.2; Hardisty, 592 F.3d at 1079.
In Gregory v. Bowen, the Ninth Circuit Court of Appeals
found that a claimant had the residual functional capacity to
return her previous work because the claimant’s condition “had
remained constant for a number of years and that” her condition
“had not prevented her from working over that time.”
664, 666-67 (9th Cir. 1988).

844 F.2d

In Gregory, the Ninth Circuit Court

of Appeals recognized that evidence of a claimant’s ability to
cope with a disease for a substantial period while still
remaining employed is evidence that the claimant has the residual
functional capacity to work in that occupation.

Id.

In this case, the ALJ employed similar reasoning in
concluding that the Plaintiff had the residual functional
capacity to work as a consultant.

The Plaintiff testified that

he had gainfully worked as a disaster site consultant for several
years even though during that time he had been suffering from
Buerger’s disease and was incapable of standing for longer than
fifteen minutes.

(AR at 298, 301.)

In line with the reasoning

in Gregory, the ALJ concluded that because of the Plaintiff’s
ability to cope with his disease and still work, the Plaintiff
had the residual functional capacity to work as a disaster site
consultant.
While the ALJ’s determination was in error for the reasons
expressed in the Ninth Circuit Court of Appeal’s remand order, it

15

nonetheless had a reasonable basis in law and fact.

Prior case

law and the Plaintiff’s own testimony supported the ALJ’s
determination that the Plaintiff had the residual functional
capacity to work as a disaster site consultant.

The

Commissioner’s support for the ALJ’s determination was,
therefore, substantially justified.

Pursuant to the EAJA, the

Plaintiff is not entitled to attorneys’ fees on this issue.
(C)

ALJ’s Credibility Determination of the Plaintiff Was
Substantially Justified
The ALJ concluded that the Plaintiff’s hearing testimony was

“not entirely credible in light of the discrepancies between the
claimant’s assertions, and the limited medical information
contained in the record.”

(AR at 17.)

The Ninth Circuit Court

of Appeals did not believe this finding was supported with
substantial evidence.

Herron, 407 Fed. Appx. at 141.

The Ninth

Circuit Panel reasoned that “an ALJ may not reject a claimant’s
subjective complaints based solely on a lack of medical evidence
to fully corroborate the alleged severity of pain.”

Id. (quoting

Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)).

Although

it is unclear whether the ALJ “rejected” the Plaintiff’s hearing
testimony as is suggested by the quote, it is clear that the
Ninth Circuit Panel was unsatisfied with the ALJ’s credibility
determination.

The ALJ failed to sufficiently articulate his

credibility determination of the Plaintiff’s testimony.

See

e.g., Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“If
16

the ALJ finds that claimant’s testimony as to the severity of her
pain and impairments is unreliable, the ALJ must make a
credibility determination with findings sufficiently specific to
permit the court to conclude that the ALJ did not arbitrarily
discredit claimant’s testimony.”).
The failure of an ALJ to sufficiently articulate a
credibility determination, however, does not mean the
Commissioner’s position was unjustified.

See Stein v. Sullivan,

966 F.2d 317, 320 (7th Cir. 1992) (“That the ALJ failed to meet
this articulation requirement in no way necessitates a finding
the Secretary's position was not substantially justified.”); see
also Carter v. Astrue, 09-CV-0667, 2011 U.S. Dist. LEXIS 23387,
at *5 (N.D. Ohio Feb. 23, 2011) (“Generally, remands stemming
from articulation errors do not result in a EAJA fee award[.]”).
For example, in Hardsity v. Astrue, the district court remanded
the case to the Commissioner because of a faulty credibility
determination by the ALJ, yet denied EAJA fees because the
Commissioner’s position was substantially justified.
1072, 1079-80.

592 F.3d

On appeal, the Ninth Circuit Court of Appeals

affirmed and held that “[t]he government’s adverse credibility
finding was substantially justified because all of the inferences
upon which it rested had substance in the record.”

Id. at 1080.

In this case, although the ALJ’s insufficiently articulated
why he believed Plaintiff’s testimony was “not entirely

17

credible,” the determination had a basis in law and fact.

During

the hearing before the ALJ, the Plaintiff provided contradictory
testimony.

At one point the Plaintiff stated that his prior

consultant job required him to “go out into the field and walk .
. . the parameter of disasters.”

(AR at 298.)

Then later, the

Plaintiff stated that he had been unable to stand for longer than
fifteen minutes over the last twenty-two years.

(AR at 301.)

When a claimant testifies to being capable of performing certain
actions and those actions are inconsistent with his alleged
disability, the ALJ may consider that discrepancy in evaluating
credibility.

See Burch v. Barnhart, 400 F.3d at 681.

Moreover,

the ALJ noted that there was a lack of medical evidence in the
record corroborating the Plaintiff’s purported inability to stand
for more than fifteen minutes during the time in which he claimed
to be disabled.
The law allows the ALJ to consider inconsistencies in a
claimants testimony while determining credibility and the record
supports the ALJ’s belief that the Plaintiff was “not entirely
credible.”

“[A]ll of the inferences upon which [the credibility

determination] rested had substance in the record.”
592 F.3d at 1080.

Hardisty,

Accordingly, the ALJ’s credibility

determination and the Commissioner’s support thereof was
“substantially justified” pursuant to the EAJA.

The Plaintiff is

not entitled to attorneys’ fees for the ALJ’s credibility

18

determination.
(D)

Commissioner’s Support of the ALJ’s Evaluation of the
Medical Evidence Was Substantially Justified
In the Ninth Circuit Court of Appeal’s remand order, the

court stated that “the ALJ erroneously evaluated the medical
evidence in the record, including a residual functional capacity
evaluation prepared by Herron’s nurse practitioner, the opinion
of the State agency medical consultant, and a VA disability
ratings determination.”

Herron, 407 Fed. Appx. at 141.

The

Commissioner argues that despite the ALJ’s errors in evaluating
the medical evidence, the decisions made by the ALJ had a basis
in law and fact and were, therefore, substantially justified.
(1)

The ALJ’s Decision to Give Limited Weight to the Nurse
Practitioner’s Opinion and Greater Weight to the State
Agency Physician’s Opinion Was Substantially Justified

In reviewing the Plaintiff’s disability claim, the ALJ was
presented with conflicting medical opinions regarding the
residual functional capacity of the Plaintiff.

One opinion,

expressed by the Plaintiff’s Advanced Registered Nurse
Practitioner (“ARNP”) Kevin Hitosis, stated that the Plaintiff
was restricted in his ability to walk and stand for prolonged
periods of time and that he was incapable of sitting for more
than two hours at any one time.

(AR at 290-92.)

The other

opinion, put forward by the State Agency’s Physician Consultant,

19

Neurologist Ramel Carlos1, stated that the Plaintiff was
restricted in his ability to walk but that he was able to sit for
about six hours with normal breaks during an eight-hour workday.
(AR at 110.)
“When presented with conflicting medical opinions, the ALJ
must determine credibility and resolve the conflict.”

Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 1004).
In resolving the conflicting medical opinions, the ALJ chose to
give “limited weight” to ARNP Hitosis’s opinion and greater
weight to Dr. Carlos’s opinion.

(AR 17-18.)

Specifically, with

regard to ARNP Hitosis, the ALJ stated that “Hitosis did not
begin to treat the claimant until June 2005 (substantially after
the claimant’s injured status expired).
afforded the opinion[.]”

(AR at 17.)

Thus, limited weight is

With regard to Dr. Carlos,

the ALJ stated:
Accordingly, the undersigned finds the claimant
retains the residual functional capacity to engage in
the full range of sedentary exertion, that is
lifting/carrying up to 10 pounds, and engaging in work
activity that is primarily performed while seated (20
C.F.R. § 404.1567). In reaching this conclusion, great
weight is afforded the opinion of the Agency medical
consultant, who reviewed the record at the lower level
and made a determination that the claimant would be
capable of essentially sedentary exertion, consistent
with the available medical evidence.

1

In Dr. Carlos’s Physical Residual Functional Capacity
Assessment it does not clearly state his name. (AR at 109-116.)
His name, however, is stated in the initial denial of disability
benefits form filed and sent to the Plaintiff on February 22,
2005. (AR at 20.)
20

(AR at 17-18.)
On appeal, the Ninth Circuit Court of Appeals held that the
ALJ’s weighing of the two medical opinions was in error.

With

regard to ARNP Hitosis’s opinion, the panel stated that the “ALJ
improperly discounted the nurse practitioner’s evaluation solely
on the ground that it was rendered outside Herron’s disability
period.”

Herron, 407 Fed. Appx. at 141 (citing Smith v. Bowen,

849 F.2d 1222, 1225 (9th Cir. 1988).

Smith holds “that medical

evaluations made after the expiration of a claimant’s insured
status are relevant to an evaluation of the pre-expiration
condition.”

849 F2d at 1225.

With regard to Dr. Carlos’s

opinion, the panel stated that giving weight to Dr. Carlos’s
opinion was misguided because “the consultant did not review a
substantial portion of the relevant medical evidence[.]”

Herron,

407 Fed. Appx. at 141.
The Commissioner argues that despite the ALJ’s error in
giving greater weight to Dr. Carlos’s medical opinion, the ALJ’s
determination had a reasonable basis in law and fact.

The Ninth

Circuit Court of Appeals holds that, “[a]cceptable medical
sources specifically include licenced physicians and licenced
psychologists, but not nurse practitioners.”
F.3d 967, 971 (9th Cir. 1996).

Gomez v. Chater, 74

Pursuant to 20 C.F.R. §

404.1513(d)(1), nurse practitioners are not considered
“acceptable medical sources” for the purposes of medical

21

impairments.

Agency physician consultants like Dr. Carlos,

however, are “experts in the evaluation of the medical issues in
disability claims under the Act.”

Soc. Sec. Ruling 96-6p, 41

Fed. Reg. 128, 34466-68 (July 2, 1996); see also Quang Van Han v.
Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989) (“[W]e defer to Social
Security Rulings unless they are plainly erroneous or
inconsistent with the Act or regulations.”).

By deciding to give

greater weight to Dr. Carlos’s opinion, the ALJ’s decision had a
reasonable basis in law.
The ALJ’s decision also had a reasonable basis in fact.
ARNP Hitosis began treatment of the Plaintiff in June 2005, after
the Plaintiff had already been denied disability benefits.

ARNP

Hitosis’s opinion stated that the Plaintiff had been suffering
from his condition, i.e., incapable of sitting for longer than
two hours and walking for longer than ten minutes, since 1983.
(AR at 292.)

According to the Plaintiff, however, the Plaintiff

had been gainfully employed at various times as a consultant,
occupational-safety and health inspector, general manager, and
maintenance supervisor between 1986 and 2000.

The ALJ chose to

give “limited weight” to ARNP Hitosis’s opinion because the
opinion did not comport with the Plaintiff’s own testimony and
ARNP had not been the Plaintiff’s treating physician during the
relevant period.
Although the ALJ’s weighing of the medical opinions was in

22

error, the ALJ’s decision had a reasonable basis in law and fact.
According to the EAJA, the Commissioner’s support of the ALJ’s
weighing of the medical evidence was substantially justified.
The Plaintiff, therefore, is not entitled to attorneys’ fees on
this issue.
(2)

The ALJ’s Consideration of the Veterans
Administration’s Disability Rating Was Substantially
Justified

On December 1, 2004, after the Plaintiff was no longer
eligible for disability benefits from the SSA, the Veterans
Administration (“VA”) determined that the Plaintiff was seventy
percent disabled as of January 12, 1998.

(AR at 101, 105-08.)

The ALJ, in consideration of the VA’s ratings determination,
stated:
[T]he Rating Decision awarding benefits effective
January 12, 1998 is afforded great weight. However,
this Rating Decision and the subsequent decisions do
not support a determination of total disability on or
before the date the claimant’s insured status expired.
There is little, if any, medical documentation covering
the period from April 1, 2000, the date the claimant’s
alleged disability began, through December 31, 2003,
the date his insured status expired.
(AR at 17.)

Although the ALJ gave “great weight” to the VA’s

disability determination, the ALJ ultimately concluded that the
VA’s disability rating by itself did not establish that the
Plaintiff was unable to work prior to December 31, 2003.

(Id.)

In the remand order, the Ninth Circuit Court of Appeals
rejected the ALJ’s conclusion.

The panel held that the ALJ

23

“failed to give any valid or persuasive reasons for discounting
the VA disability ratings determination.”

Herron, 407 Fed. Appx.

at 141 (citing McCartey v. Massanari, 239 F.3d 1072, 1076 (9th
Cir. 2002).
In general, the SSA gives great weight to VA disability
rating determinations.

Massanari, 239 F.3d at 1076.

Both

programs evaluate a claimant’s ability to perform full-time work
in the national economy, focus on functional limitations, and
require claimants to present extensive medical documentation.
Id.

The VA and SAA, however, are different agencies and the

disability determinations of one agency do not bind the other. 20
C.F.R. § 404.1504 (“[A] determination made by another agency that
you are disabled . . . is not binding[.]”).

For this reason, the

Ninth Circuit Court of Appeals has held that “the ALJ may give
less weight to a VA disability rating if he gives persuasive,
specific, valid reasons for doing so that are supported by the
record.”

Massanari, 298 F.3d at 1076.

Here, the ALJ had a reasonable explanation for concluding
that the VA’s disability rating did not establish total
disability.

The VA stated that the Plaintiff was seventy percent

disabled as of January 12, 1998.

(AR at 101.)

The Plaintiff,

however, was employed as a disaster site consultant between 1999
and 2000, which required him to walk around disaster sites.
at 69, 298.)

(AR

The Plaintiff was gainfully employed during the

24

period in which the VA concluded the Plaintiff was seventypercent disabled.

This fact supports the ALJ’s conclusion that

the Plaintiff could perform past work despite the VA rating.
Moreover, there was no medical documentation during the period
the Plaintiff alleged he became disabled and the date his insured
status expired.
While the ALJ’s consideration of the VA disability rating
was insufficiently articulated for the reasons expressed in the
Ninth Circuit Court of Appeal’s remand order, the ALJ’s position
had a basis in law and fact.

The Commissioner’s support of the

ALJ’s consideration of the VA disability rating was, therefore,
substantially justified.

Pursuant to EAJA, the Plaintiff is not

entitled to attorneys’ fees on this issue.
CONCLUSION
Although the Ninth Circuit Court of Appeals concluded that
the ALJ’s disability determination was not supported with
substantial evidence, a review of the record indicates that the
ALJ’s decision had a basis in law and fact.

The ALJ’s decision,

and the Commissioner’s support thereof, was substantially
justified.

Pursuant to the EAJA, the Plaintiff is not entitled

to attorneys’ fees.
(1)

PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND RECOMMENDATIONS
OF THE U.S. MAGISTRATE JUDGE REGARDING PLAINTIFF’S
APPLICATION FOR ATTORNEYS’ FEES UNDER THE EQUAL ACCESS TO

25

JUSTICE ACT” (Doc. 66), filed March 21, 2012, are DENIED.
(2)

The Magistrate Judge’s FINDINGS AND RECOMMENDATION TO DENY
PLAINTIFF’S APPLICATION FOR ATTORNEYS’ FEES UNDER THE EQUAL
ACCESS TO JUSTICE ACT (Doc. 65), filed February 29, 2012,
are ADOPTED.

IT IS SO ORDERED
DATED:

May 31, 2012, Honolulu, Hawaii.

/S/ Helen Gillmor
Helen Gillmor
United States District Judge

Herron v. Astue, Civ. No. 07-00623 HG-BMK; ORDER DENYING
PLAINTIFF’S OBJECTIONS TO THE FINDINGS AND RECOMMENDATION OF THE
U.S. MAGISTRATE JUDGE REGARDING PLAINTIFF’S APPLICATION FOR
ATTORNEYS’ FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (DOC. 66)
AND ADOPTING THE MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
TO DENY PLAINTIFF’S APPLICATION FOR ATTORNEYS’ FEES UNDER THE
EQUAL ACCESS TO JUSTICE ACT (DOC. 65)

26