Diesta v. Carolyn W. Colvin, Commissioner of Social Security
Filing
58
ORDER SUSTAINING DEFENDANT'S OBJECTIONS TO THE MAGISTRATE JUDGE'S AMENDED FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES (ECF No. 54 ) AND OVERRULING PLAI NTIFF'S OBJECTIONS TO AMENDED FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES (ECF No. 53 ) ANDREJECTING THE MAGISTRATE JUDGE'S AMENDED FINDINGS AND RECOM MENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR ATTORNEYS' FEES (ECF No. 52 ) ANDDENYING PLAINTIFF'S MOTION FOR ATTORNEYS' FEES (ECF No. 39 ) - Signed by JUDGE HELEN GILLMOR on 2/28/2020. Defendant United States' Objections (ECF No. 54) are SUSTAINED. Plaintiff Diesta's Objections (ECF No. 53) are OVERRULED. &nbs p; The Magistrate Judge's November 26, 2019 Amended Findings and Recommendation (ECF No. 52) is REJECTED. Plaintiff's Motion for Attorneys' Fees (ECF No. 39) is DENIED. This case is REMANDED to the agency for further proceedings pursuant to the March 19, 2019 Memorandum of the Ninth Circuit Court of Appeals. (jo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
WILLIAM Q. DIESTA,
)
)
Plaintiff,
)
)
vs.
)
)
ANDREW SAUL, COMMISSIONER OF
)
SOCIAL SECURITY,
)
)
Defendant.
)
_____________________________________ )
CIVIL NO. 15-00465 HG-RT
ORDER SUSTAINING DEFENDANT’S OBJECTIONS TO THE MAGISTRATE JUDGE’S
AMENDED FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN
PART PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (ECF No. 54)
AND
OVERRULING PLAINTIFF’S OBJECTIONS TO AMENDED FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES (ECF No. 53)
AND
REJECTING THE MAGISTRATE JUDGE’S AMENDED FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES (ECF No. 52)
AND
DENYING PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (ECF No. 39)1
Plaintiff William Q. Diesta initially applied for both
Disability Insurance Benefits and Supplemental Security Income in
1
Pursuant to Federal Rule of Civil Procedure 25(d), Andrew
Saul, in his official capacity as Commissioner of Social
Security, is substituted as the proper defendant.
1
2013.
Plaintiff appealed to the District Court following a long
procedural history that involved the ultimate denial of his
benefits by an Administrative Law Judge and the Appeals Council
of the Social Security Administration.
On November 15, 2016, this Court affirmed the Administrative
Law Judge’s decision denying Plaintiff’s request for benefits.
On March 19, 2019, a three-judge panel of the Ninth Circuit
Court of Appeals reversed and remanded proceedings to the agency.
The decision by the Ninth Circuit panel was not unanimous.
Circuit Judge Rawlinson filed a dissenting opinion that concurred
with the decision by this Court.
On remand, Plaintiff seeks attorneys’ fees and costs
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §
2412.
The Magistrate Judge issued an Amended Findings and
Recommendation to grant, in part, and deny, in part, Plaintiff’s
Motion seeking attorneys’ fees.
The Magistrate Judge recommended
granting $20,946.24 to Plaintiff in attorneys’ fees.
Defendant objects to the Amended Findings and Recommendation
on the basis that its litigation position was substantially
justified.
Plaintiff objects to the Amended Findings and Recommendation
on the basis that he requests more attorneys’ fees than the
$20,946.24 recommended by the Magistrate Judge.
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Defendant United States’ Objections (ECF No. 54) are
SUSTAINED.
Plaintiff Diesta’s Objections (ECF No. 53) are OVERRULED.
The Magistrate Judge’s November 26, 2019 Amended Findings
and Recommendation (ECF No. 52) is REJECTED.
Plaintiff’s Motion for Attorneys’ Fees (ECF No. 39) is
DENIED.
PROCEDURAL HISTORY
On February 25, 2013, Plaintiff William Q. Diesta filed an
application for Disability Insurance Benefits with the Social
Security Administration.
180, ECF No. 14).
(Administrative Record (“AR”) at 176-
On the same date, Plaintiff William Q. Diesta
filed an application for Supplemental Security Income.
(AR at
pp. 169-175).
In May and November 2013, the Social Security Administration
denied Plaintiff’s initial applications and his requests for
reconsideration.
(AR at pp. 118-122, 126-128, 129-131).
Following the denial of Plaintiff’s application, he sought a
hearing before an Administrative Law Judge (“ALJ”) and on May 20,
2014, an ALJ conducted a hearing on Plaintiff’s applications.
(AR at pp. 29-53, 132-33).
On August 1, 2014, the ALJ issued a written decision denying
Plaintiff’s applications and Plaintiff sought review by the
3
Appeals Council for the Social Security Administration.
pp. 8-28).
(AR at
The Appeals Council denied further review of
Plaintiff’s applications on October 22, 2015, rendering the ALJ’s
decision as the final administrative decision by the Commissioner
of Social Security.
(AR at pp. 1-7).
On November 5, 2015, Plaintiff sought judicial review of the
Commissioner of Social Security’s final decision to deny
Plaintiff’s applications for Disability Benefits and Supplemental
Security Income in this Court pursuant to 42 U.S.C. § 405(g).
(Complaint for Review of Social Security Disability and
Supplemental Security Income Benefits Determinations, ECF No. 1).
On October 11, 2016, the District Court held a hearing on
Plaintiff’s appeal of the decision of the Social Security
Administration Commissioner.
On November 15, 2016, the District Court issued an ORDER
AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION
COMMISSIONER.
(ECF No. 26).
On January 11, 2017, Plaintiff filed a Notice of Appeal to
the Ninth Circuit Court of Appeals.
(ECF No. 28).
On March 19, 2019, the Ninth Circuit Court of Appeals issued
a Memorandum Decision reversing and remanding proceedings to the
agency to award benefits.
filed a dissenting opinion.
(ECF No. 37).
Circuit Judge Rawlinson
(Id.)
On June 4, 2019, Plaintiff filed a Motion for Attorneys’
4
Fees.
(ECF No. 39).
On July 5, 2019, Defendant filed an Opposition.
(ECF No.
44).
On July 22, 2019, Plaintiff filed a Reply.
(ECF No. 45).
On August 30, 2019, the Magistrate Judge issued a FINDINGS
AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES.
(ECF No. 46).
On September 6, 2019, Plaintiff filed a Motion for
Reconsideration.
(ECF No. 47).
On September 13, 2019, the Magistrate Judge held a Status
Conference.
(ECF No. 50).
On November 26, 2019, the Magistrate Judge issued an ORDER
DENYING MOTION FOR RECONSIDERATION.
(ECF No. 51).
Also on November 26, 2019, the Magistrate Judge issued an
AMENDED FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN
PART PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES.
(ECF No. 52).
On December 10, 2019, Plaintiff filed Objections to the
Magistrate Judge’s Amended Findings and Recommendation.
(ECF No.
53).
On December 10, 2019, Defendant filed its Objections to the
Magistrate Judge’s Amended Findings and Recommendation.
(ECF No.
54).
On December 18, 2019, the District Court issued a briefing
schedule.
(ECF No. 55).
5
On January 21, 2020, Defendant filed its Response to
Plaintiff’s Objections.
(ECF No. 56).
On the same date, Plaintiff filed his Response to
Defendant’s Objections.
(ECF No. 57).
The Court elects to decide the matter without a hearing
pursuant to District of Hawaii Local Rule 7.1(c).
STANDARD OF REVIEW
When a party objects to a magistrate judge’s findings and
recommendations, the district court must review de novo those
portions to which the objections are made and “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
28 U.S.C. §
636(b)(1); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th
Cir. 2003).
Under a de novo standard, this Court reviews the matter
anew, the same as if it had not been heard before and as if no
decision had been previously rendered.
457 F.3d 1001, 1004 (9th Cir. 2006).
Freeman v. DirecTV, Inc.,
The District Court need not
hold a hearing, but it is the Court’s obligation to arrive at its
own independent conclusion about those portions of the magistrate
judge’s findings or recommendation to which the party objects.
United States v. Remsing, 874 F.2d 614, 616 (9th Cir. 1989).
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ANALYSIS
I.
Availability Of Attorneys’ Fees Pursuant To The Equal Access
To Justice Act In Social Security Cases
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 Equal Access to Justice Act authorizes fee-shifting to a
prevailing plaintiff in an appeal from a decision by the Social
Security Administration under specific circumstances.
Hardisty
v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010).
Attorneys’ fees are not available to the prevailing
plaintiff 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.
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
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disability determination was substantially justified.
1078.
Id. at
Substantial justification for the purposes of the Equal
Access to Justice Act “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, 1052 (9th Cir. 1998) (quoting Pierce v. Underwood, 487
U.S. 552, 565 (1988)).
II.
EAJA Fees Are Unavailable When The Government’s Position Is
Substantially Justified
The Government’s position is “substantially justified” when
the position has a “reasonable basis in law and fact.”
487 U.S. at 566 n.2.
Pierce,
A position can be substantially justified
pursuant to the Equal Access to Justice Act even when the
position is ultimately incorrect.
Id.
The test for determining
whether a position was substantially justified focuses on whether
“a reasonable person could think it correct.”
A position is
substantially justified if there is a genuine dispute between
reasonable minds.
Id.
Substantially justified does not require anything more than
reasonableness.
Id.
The substantially justified standard is a
“middle ground between an automatic award of fees and an award
only where the government’s position was frivolous.”
8
Cornella v.
Schweiker, 728 F.2d 978, 982 (8th Cir. 1984) (citing H.R. Rep.
No. 1418, 96th Cong., 2d Sess. 14 in 1980 U.S. Code Cong. & Ad.
News 4993).
III. The Government’s Position Was Substantially Justified
At the Plaintiff’s May 20, 2014 administrative hearing, the
Administrative Law Judge (“ALJ”) for the Social Security
Administration reviewed Plaintiff’s claim for benefits.
The ALJ evaluated the medical evidence, Plaintiff’s
testimony, and other evidence in the record and determined that
there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform given his age, education, work
experience, and residual functional capacity.
(AR at pp. 21-23).
Plaintiff appealed the decision to this Court.
raised a number of arguments on appeal.
Plaintiff
One of Plaintiff’s
arguments challenged the ALJ’s decision with regard to the
opinion by Clinical Psychologist Dennis Donovan, Ph.D.
Dr. Donovan conducted a consultative examination of
Plaintiff and made conclusions as to Plaintiff’s ability to work.
The ALJ rejected some of the conclusions of Dr. Donovan.
Plaintiff argued on appeal that the ALJ did not provide
sufficient reasons for rejecting parts of his opinion.
This Court found that the ALJ did not err.
(ORDER AFFIRMING
THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER
9
at pp. 27-32, ECF No. 26).
This Court explained that the ALJ
properly rejected Dr. Donovan’s conclusions that were premised
solely on the claimant’s own reports as to the severity of his
impairments and found Dr. Donovan’s conclusions were
contradictory to other objective evidence in the record,
including evaluations by the claimant’s treating physicians.
(Id.)
Plaintiff appealed this Court’s decision to the Ninth
Circuit Court of Appeals.
The only issue that the Ninth Circuit
Court of Appeals evaluated was whether the ALJ properly rejected
the opinion of Dr. Donovan.
Two judges of the three-judge panel
determined that the ALJ “did not state clear and convincing
reasons for rejecting Dr. Donovan’s opinions.”
(Ninth Circuit
Memorandum Opinion at p. 3, ECF No. 37).
Circuit Judge Rawlinson did not agree with the majority.
Judge Rawlinson issued a dissenting opinion.
She asserted that
the majority applied the incorrect standard in reviewing the
ALJ’s rejection of Dr. Donovan’s opinion.
Circuit Judge
Rawlinson explained that the ALJ was not required to provide
“clear and convincing reasons” for rejecting Dr. Donovan’s
opinions.
Circuit Judge Rawlinson asserted that the appropriate
standard was whether the ALJ provided “specific and legitimate
reasons” for rejecting Dr. Donovan’s opinions, because Dr.
Donovan’s opinions were inconsistent with the opinions of
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Plaintiff’s treating physicians.
ECF No. 37-1).
(Dissenting Opinion at pp. 2-3,
Circuit Judge Rawlinson explained, as follows:
There is a hierarchy of opinions among physicians in
the social security arena. The opinion of the treating
physician is entitled to the highest weight. The
opinion of an examining physician is entitled to lesser
weight. See Lester v. Chater, 81 F.3d 821, 830 (9th
Cir. 1996), as amended.
To reject the contradicted opinion of a treating
physician or an examining physician, the ALJ must
provide “specific and legitimate reasons.” Id. at 83031 (citations omitted).
In this case, the ALJ gave “significant weight” to Dr.
Donovan’s opinion, with the exception of the
conclusions that the claimant could not handle his
finances or the pace of work.
....the ALJ provided specific and legitimate reasons
supported by the record for rejecting Dr. Donovan’s
divergent opinion, the decision of the ALJ was
supported by substantial evidence and should be
affirmed. See Valentine v. Commissioner, 574 F.3d 685,
692-93 (9th Cir. 2009).
(Dissenting Opinion at pp. 1-3, ECF No. 37-1).
The particular circumstances of this case, the reasonable
disputes concerning the interpretation of the examiner’s
conclusions, and the controverted standard of review on appeal
demonstrates that the Government’s position was substantially
justified.
Remand by the circuit court does not mean there was a lack
of substantial justification by the Government.
Astrue, 736 F.3d 867, 869 (9th Cir. 2013).
Campbell v.
In each case, the
District Court must assess the justification of the Government’s
11
position based on its reasonableness before the remanding court
made its decision on the merits.
659, 664 (9th Cir. 2017).
Decker v. Berryhill, 856 F.3d
Reasonableness is assessed from the
Government’s perspective at the time it made its litigation
decisions.
Meier v. Colvin, 727 F.3d 867, 873 (9th Cir. 2013).
The Government’s litigation position with respect to the
opinion of Dr. Donovan was substantially justified.
The
majority’s decision hinged on a nuanced questions of law.
The
appellate court judges disagreed as to how much deference is owed
to an ALJ when discrediting an examining physician based on the
opinions of treating physicians, the claimant’s own subjective
testimony, and other objective evidence in the record.
This is a
common dispute before the District Courts and the Ninth Circuit
Court of Appeals, which involves nuanced determinations of law.
Compare Ford v. Saul,
F.3d
, 2020 WL 829864, *7 (Feb. 20,
2020); Benecke v. Barnhart, 379 F.3d 587, 592 (9th Cir. 2004);
Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1195-96 (9th Cir.
2004).
Courts have widely held that when the law is unclear or
influx or where the legal question at issue has divided the lower
courts within the circuit, the government’s position in advancing
one view of the issue is substantially justified.
Meyer v.
Colvin, 754 F.3d 251, 256 (4th Cir. 2014).
The Government persuaded both a District Court Judge and an
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Appellate Circuit Court Judge that its position regarding the
examining physician’s opinion was not only justified, but
correct.
It is appropriate to consider the Government’s success
in the District Court and if there were any dissenting opinions
on appeal as part of the EAJA fees analysis.
Meier, 727 F.3d at
873; Belanger v. Berryhill, 2017 WL 3484675, *2 (D. Or. Aug. 14,
2017) (finding the government’s position was substantially
justified where both the district court and a dissenting circuit
judge found that the government’s position regarding the ALJ’s
rejection of a treating physician’s opinion was correct).
On the record presented in this case, the Government’s
position was substantially justified.
Plaintiff is not entitled
to attorneys’ fees pursuant to the Equal Access to Justice Act.
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CONCLUSION
Defendant United States’ Objections (ECF No. 54) are
SUSTAINED.
Plaintiff Diesta’s Objections (ECF No. 53) are OVERRULED.
The Magistrate Judge’s November 26, 2019 Amended Findings
and Recommendation (ECF No. 52) is REJECTED.
Plaintiff’s Motion for Attorneys’ Fees (ECF No. 39) is
DENIED.
This case is REMANDED to the agency for further proceedings
pursuant to the March 19, 2019 Memorandum of the Ninth Circuit
Court of Appeals.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, February 28, 2020.
William Q. Diesta v. Andrew Saul, Commissioner of Social
Security, Civ. No. 15-00465 HG-RT; ORDER SUSTAINING DEFENDANT’S
OBJECTIONS TO THE MAGISTRATE JUDGE’S AMENDED FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES (ECF No. 54) AND OVERRULING
PLAINTIFF’S OBJECTIONS TO AMENDED FINDINGS AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART PLAINTIFF’S MOTION FOR ATTORNEYS’
FEES (ECF No. 53) AND REJECTING THE MAGISTRATE JUDGE’S AMENDED
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (ECF No. 52) AND DENYING
PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES (ECF No. 39)
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