Kalland v. Berryhill

Filing 19

ORDER granting 15 Motion for Attorney Fees. Defendant must promptly pay Plaintiff's counsel fees in the amount of $7,041.77 and costs of $400.00. Signed by Magistrate Judge Timothy J. Cavan on 10/22/2018. (JEC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
KEVIN EUGENE KALLAND,

CV 17-15-BLG-SPW-TJC

Plaintiff,
ORDER
vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.
On March 31, 2018 this Court reversed the decision of the Administrative
Law Judge (“ALJ”) in this matter, and remanded the case for further administrative
proceedings. (Doc. 13.) The Court found the ALJ improperly discounted
Plaintiff’s credibility without providing specific, clear and convincing reasons for
doing so, and also erred in failing to provide specific and legitimate reasons for
discounting the opinions of Plaintiff’s treating physician, Dr. Willis.
Thereafter, Plaintiff requested reasonable attorney fees and costs pursuant to
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 15.)
Defendant opposed Plaintiff’s request, and the Court ordered Defendant to indicate
its grounds for opposition. (Doc. 16.)
Under the EAJA, a prevailing party is entitled to attorney’s fees when the
government was not “substantially justified” in its actions. 28 U.S.C. §
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2412(d)(1)(A). Defendant claims she was substantially justified in defending the
case because (1) the ALJ provided “arguably valid reasons for questioning
Plaintiff’s testimony” and (2) she reasonably defended the case “despite the
Court’s finding of error with respect to Dr. Willis’s opinion.” (Doc. 17 at 2-3.)
Plaintiff counters that Defendant’s position was not reasonably based in law and
fact. (Doc. 18 at 2.)
For the reasons set forth herein, the Plaintiff’s motion is GRANTED.
I.

Legal Standard
28 U.S. C. § 2412(d) in relevant part provides:
[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 . . .
brought by or against the United States . . . unless the court finds that the
position of the United States was substantially justified or that special
circumstances make an award unjust.
The position of the United States must be “justified to a degree that could

satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 563 (1988).
“[T]o be substantially justified, the government’s position must have a reasonable
basis both in law and in fact.” Trujillo v. Berryhill, 700 Fed. Appx. 764, 765 (9th
Cir. 2017) (quoting Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017). “[T]he
existence of precedents construing similar statutes or similar facts is an important
factor in determining whether the government’s litigation position was

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substantially justified.” Id. (citing Kali v. Bowen, 854 F.2d 329, 332 (9th Cir.
1988)).
The Ninth Circuit has stated that a presumption arises under the EAJA “that
fees will be awarded to prevailing parties . . . .” Flores v. Shalala, 49 F.3d 562, 567
(9th Cir. 1995). The government bears the burden of proving its position was
substantially justified. Kali, 854 F.2d at 332.
In the social security context, “the position of the United States includes
both the government’s litigation position [in the civil action] and the underlying
agency action giving rise to the civil action.” Meier v. Colvin, 727 F.3d 867, 870
(9th Cir. 2013). In determining whether the government’s position in the
underlying agency action was substantially justified, the Court must first look at
the ALJ’s decision. Id. at 872. The Court then considers whether the
government’s subsequent litigation position before the district court was
substantially justified. Id. But if the Court determines that the government’s
underlying agency position was not substantially justified, it does not need to
determine whether the government’s litigation position was justified. Id.
A holding that an “agency’s decision was unsupported by substantial
evidence is a strong indication that the position of the United States was not
substantially justified.” Id. at 872 (internal quotations and citations omitted).
Indeed, “it will be only a ‘decidedly unusual case in which there is a substantial
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justification under the EAJA even though the agency’s decision was reversed as
lacking in reasonable, substantial and probative evidence in the record.’”
Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Al-Harbi v.
INS, 284 F.3d 1080, 1085 (9th Cir. 2002)
II.

Discussion
A. Plaintiff’s Testimony
Defendant first argues “the ALJ gave at least arguably valid reasons for

questioning Plaintiff’s testimony . . . and only discounted Plaintiff’s claims of
disability for a two-year period of time.” (Doc. 17 at 2.) The Court finds
Defendant’s argument unpersuasive for the reasons discussed below.
As discussed in this Court’s remand order, a two-step analysis is used to
determine the credibility of a claimant’s testimony. Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009). The ALJ first determines whether the claimant presented
objective evidence of an impairment or impairments that could reasonably be
expected to produce the pain or symptoms alleged. Id. If the first step is satisfied
and no affirmative evidence of malingering exists, the ALJ may only reject the
claimant’s testimony by providing “specific, clear and convincing reasons.” Id.
“General findings are insufficient; rather, the ALJ must identify what testimony is
not credible and what evidence undermines the claimant’s complaints.” Reddick v.
Chater, 157 F.3d 715, 722 (9th Cir. 1998).
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Here, the first prong of the test was not at issue. To satisfy the second
prong, then, the ALJ was required to cite specific, clear and convincing reasons for
rejecting Plaintiff’s testimony concerning the severity of his impairments. This
Court found the ALJ failed to do so. As the Court discussed, the ALJ supported its
rejection of Plaintiff’s testimony by citing unspecified medical records indicating
the worsening of symptoms (A.R. 27), and by pointing to unspecified treatment
records containing “significant evidence” that claimant “retained strength and
range of motion and was able to participate in some recreational activities.” Id. As
the Court found, these reasons fail to meet the clear and convincing standard
required to discredit Plaintiff’s testimony.
Additionally, the ALJ consistently failed to explain why his findings
impacted Plaintiff’s credibility or were inconsistent with Plaintiff’s testimony. The
ALJ failed to link Plaintiff’s testimony with any particularity to the record, leaving
his non-credibility finding unsupported.
The Court thus disagrees with the Defendant’s argument that the ALJ’s
findings are “arguably valid.” The ALJ’s unsupported findings were plainly
insufficient to meet the clear and convincing standard established by the Ninth
Circuit. Since the government’s underlying agency action was not substantially
justified, it is not necessary to determine whether the government’s litigation
position before this Court was justified. Meier, 727 F.3d at 872. Nevertheless,
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given the substantial insufficiency of the ALJ’s analysis of this issue, the Court
further concludes that the government did not reasonably choose to defend the
ALJ’s credibility determination. Therefore, neither the government’s agency
position nor its litigation position were substantially justified.
B. Treating Physician’s Testimony
Next, Defendant argues it was reasonable to “defend the case despite the
Court’s finding of error with respect to Dr. Willis’s opinion.” (Doc. 17 at 3.)
Again, the Court finds Defendant’s argument unpersuasive for the reasons
discussed below.
A treating physician’s medical opinion is given controlling weight if it “is
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the
claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). To discount the
controverted opinion of a treating physician, the ALJ must provide “specific and
legitimate reasons supported by substantial evidence in the record.” Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “The ALJ can meet this burden by
setting out a detailed and thorough summary of the facts and conflicting evidence,
stating his interpretation thereof, and making findings.” Id. (quoting Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The ALJ cannot simply offer his

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conclusions, but “must set forth his own interpretations and explain why they,
rather than the doctors’ are correct.” Reddick, 157 F.3d at 725.
Even if the treating physician’s opinion is not given controlling weight, the
ALJ cannot simply reject the opinion. Treating source opinions are still entitled to
deference and must be weighed using all the factors provided in 20 C.F.R. §
404.1527(c).
Having treated Plaintiff for multiple years, and whose treatment records form
a substantial portion of the pertinent medical evidence in this case, Dr. Willis is
Plaintiff’s primary treating physician. As previously noted by this Court, in
August 2010 Dr. Willis opined “that the claimant could not return to his prior work
status or functional status . . . due to chronic right shoulder pain, recurrent rotator
cuff tear, and neurogenic discomfort.” (A.R. 27, 613.) The ALJ acknowledged
Dr. Willis’s opinion, but in two short sentences, afforded his opinion “little
weight.” (A.R. 27.) Specifically, the ALJ stated Dr. Willis had no vocational
expertise and “his opinion states little more than a finding reserved to the
Commissioner.” Id.
As previously discussed in this Court’s remand order, the ALJ’s decision
plainly failed to provide “specific and legitimate reasons supported by substantial
evidence in the record” to discount Dr. Willis’s medical opinion. Molina, 674 F.3d
at 1111. Further, the ALJ wholly failed to consider the appropriate factors to
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determine what weight to accord the opinion. The ALJ must consider the factors
provided in 20 C.F.R. § 404.1527(c) in making such a determination, and “[t]his
failure alone constitutes reversible legal error.” Trevizo, 871 F.3d at 676.
Therefore, the government’s underlying agency position was not
substantially justified with respect to Dr. Willis’s opinion. Further, given the
deficiency in the ALJ’s analysis, the Court is not convinced the government’s
defense of the ALJ’s decision was reasonable.
In addition, Defendant’s complaint that Plaintiff’s argument on the treating
physician issue was not sufficiently presented in his opening brief is unconvincing.
Plaintiff raised the issue in his opening brief. (Doc. 10 at 19-21.) To be sure, the
Plaintiff’s argument could have been presented with more clarity. Nevertheless,
the Plaintiff raised the issue, and the Defendant was on notice of the claim.
Defendant obviously has expertise regarding the standards applied to a treating
physician’s opinions, and evaluating whether those standards were appropriately
applied by the ALJ in this instance.
IV.

Conclusion
For the foregoing reasons, the Court finds Defendant has failed to meet her

burden of showing the government’s position was substantially justified under the
EAJA.

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Plaintiff is the prevailing party and is an individual whose net worth does not
exceed $2,000,000.00. 28 U.S.C. § 2412(d)(2)(B). Plaintiff requests attorney’s
fees in the amount of $7,041.77 reflecting 3.2 hours worked at the rate of $192.68
per hour, and 32.65 hours worked at the rate of $196.79 per hour. (Doc. 15 at 3-6.)
Plaintiff also requests costs of $400.00. (Doc. 15 at 4.) Defendant has not
presented any argument to contest the reasonableness of the fees claimed.
Therefore, the Court finds the hourly rate is reasonable, as is the number of
attorney hours expended and the costs incurred.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Application for
Award of EAJA Fees and Costs is GRANTED.
Defendant must promptly pay Plaintiff’s counsel fees in the amount of
$7,041.77, and costs of $400.00.
IT IS ORDERED.
DATED this 22nd day of October, 2018.
_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge

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