Iserloth v. Colvin

Filing 24

ORDER: IT IS HEREBY ORDERED that 20 Plaintiff's Application for Award of EAJA Fees is DENIED. Signed by Magistrate Judge John Johnston on 4/18/2018. (ACC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
MIKE EDWIN ISERLOTH,

CV 16-114-GF-BMM

Plaintiff,

ORDER DENYING PLAINTIFF’S
APPLICATION FOR AWARD OF
EAJA FEES

vs.
NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

I. Synopsis
After judicial review by the undersigned, Mr. Iserloth’s case was remanded
to the Commissioner of Social Security for calculation of an award of benefits,
after the Court concluded that the Administrative Law Judge’s (ALJ) determination
denying benefits was not supported by substantial evidence. (Doc. 18). Mr.
Iserloth now requests attorney’s fees and costs under the Equal Access to Justice
Act (EAJA), 28 U.S.C. § 2412(d). (Doc. 20). For the reasons set forth below, the
Commissioner’s position was substantially justified and therefore, Mr. Iserloth is
not entitled to attorney’s fees under the EAJA.
II. Jurisdiction and Venue
The District Court has jurisdiction under 42 U.S.C. § 405(g). This motion
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has been referred to the undersigned. (Doc. 22). Venue is proper in the Great Falls
Division of the District of Montana because Mr. Iserloth resides in Cascade
County, Montana. 28 U.S.C. § 1391(e); Local Rule 1.2(c)(2).
III. Status
On November 29, 2017, the District Court remanded the case to the
Commissioner for calculation of benefits. (Doc. 18). On January 30, 2018, Mr.
Iserloth filed an Application for Award of EAJA Fees, requesting $7,042.09 in
attorney’s fees. (Doc. 20). The Commissioner opposed the award of fees in Mr.
Iserloth’s motion, arguing that the Commissioner’s decision was substantially
justified. (Doc. 21). The motion is ripe for decision.
IV. Standards
The EAJA provides for an award of attorney’s fees to a prevailing party
(other than the United States), unless the position of the United States was
substantially justified or other circumstances make the award of attorney’s fees
unjust. 28 U.S.C. § 2412(d)(1)(A). It is the burden of the government to prove its
position was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir.
2013).
The position of the government can be substantially justified even if it was
not correct. Pierce v. Underwood, 487 U.S. 552, 556 n. 2 (1988). A position is
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substantially justified if it has a “reasonable basis in both law and fact.” Id. at 555.
Substantial justification means “justified to a degree that could satisfy a reasonable
person.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 2017). This includes
situations in which “reasonable people could differ as to the appropriateness of the
contested action.” Pierce, 487 U.S. at 565. Furthermore, the government “need
not show it had a substantial likelihood of prevailing.” Petition of Hill, 775 F.2d
1037, 1042 (9th Cir. 1985). Rather, the Commissioner’s position is substantially
justified so long as “some evidence” supports it. Williams v. Bowen, 966 F.2d
1259, 1261 (9th Cir. 1991).
V. Facts
On January 23, 2014, Mr. Iserloth applied for disability benefits and
supplemental security income. (Doc. 7 at 158-73). The Administration denied his
claim on March 11, 2014, and affirmed its denial of Mr. Iserloth’s claim upon
reconsideration on July 21, 2014. (Id. at 80-92, 108-20).
On August 26, 2014, Mr. Iserloth requested a hearing with an ALJ. (Id. at
146-47). The ALJ conducted a video hearing on April 22, 2015, at which Mr.
Iserloth appeared with counsel. (Id. at 40-77). On June 5, 2015, the ALJ
determined Mr. Iserloth did not qualify for benefits. (Id. at 25-34). On August 3,
2015, Mr. Iserloth requested the Social Security Administration Appeals Council
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(Appeals Council) review the ALJ’s determination. (Id. at 15). On September 13,
2015, the Appeals Council denied Mr. Iserloth’s request, making the ALJ’s
determination the final decision of the Commissioner. (Id. at 1-4).
On November 8, 2016, Mr. Iserloth filed a Complaint seeking judicial
review of the Commissioner’s decision. (Doc. 1). United States Magistrate Judge
John Johnston found that 1) The ALJ committed legal error in determining that Mr.
Iserloth’s statements about the intensity, persistence, and limiting effect of his
symptoms are not entirely credible, and 2) The ALJ’s determination that Dr.
Warr’s opinions were not be given significant weight is based upon legal error and
not supported by substantial evidence. (Doc. 16 at 22).
Mr. Iserloth requests an award of attorney’s fees totaling $7,042.09 for 6.7
hours of work at a rate of $192.68 per hour, and for 29.35 hours at a rate of
$195.95 per hour. (Doc. 20 at 4).
VI. Analysis
Mr. Iserloth meets the initial requirements under the EAJA. He is the
prevailing party, he is an individual whose net worth does not exceed two million
dollars, and he alleges that the position of the United States in the underlying case
was not substantially justified. (Doc. 19 at 3). Additionally, the United States
does not dispute the reasonableness of Mr. Iserloth’s calculation of attorney fees.
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The question is whether the United States was substantially justified in defending
the Commissioner’s decision.
In its Findings and Recommendations,1 the Court found that the ALJ did not
specifically identify what of Mr. Iserloth’s testimony was not credible in light of
the evidence she cited, which was legal error. (Doc. 16 at 12). The Court also
found that the ALJ did not cite to specific medical records to support her
determination that Dr. Warr’s opinions were contradicted by his own records, but
instead cited to 140 pages of medical records. (Id. at 16). Thus, the ALJ’s failure
to cite to specific records led the Court to find that her decision was not supported
by substantial evidence. (Id. at 16-17).
The Commissioner argues that its position was substantially justified, and
therefore the Court must not award fees. (Doc. 21). The Commissioner argues that
her position need not be correct in order to be “substantially justified,” so long as it
has a “reasonable basis in law and fact.” (Id. at 2 (citing Pierce, 487 U.S. at 566
n.1)).
The Court determined that the ALJ erred in discounting Mr. Iserloth’s
credibility as well as the opinion of the treating physician, Dr. Warr. (Doc. 16 at

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The Findings and Recommendations (Doc. 16) were adopted in full by the District
Court. (Doc. 18).
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12-17). With respect to Mr. Iserloth’s credibility, the Commissioner argues that
the ALJ’s credibility finding need only be “sufficiently specific to permit the court
to conclude that the ALJ did not ‘arbitrarily discredit a claimant’s testimony.’ ”
(Doc. 21 at 3 (quoting Bunnell v. Sullivan, 947 F.3d 341, 345 (9th Cir. 1991) (en
banc)).
In the ALJ’s decision, she determiend that Mr. Iserloth’s “statements
concerning the intensity, persistence and limiting effect of these symptoms are not
entirely credible.” (Doc. 7 at 16). The ALJ then discussed 1) some of the medical
care and treatment Mr. Iserloth received for his cancer treatment and how
he responded to this treatment, 2) a June 14, 2014 “Functional Report” which Mr.
Iserloth provided which the ALJ determined “indicates he is not as limited as he
alleges or perceives himself to be,” and 3) Mr. Iserloth’s testimony at the hearing.
(Id. at 16-17). The Court determined that the ALJ did not specifically match these
observations with what specific testimony from Mr. Iserloth was not credible, and
therefore committed legal error. (Doc. 16 at 12).
However, although the ALJ committed legal error, the Court determines that
the Commissioner’s defense of the ALJ’s credibility assessment was substantially
justified because it is supported by a “reasonable basis in both law and fact.”
As for Dr. Warr’s opinion, the Commissioner argues that her position was
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substantially justified because “some evidence” supported it. (Id. at 21 (citing
Williams, 966 F.2d at 1261). While lacking in specificity, the Court found that the
ALJ’s stated reason, is a legitimate reason for rejecting the credibility of a treating
physician’s controverted opinion. “[C]ontradictions between a doctor’s opinion
and that doctor’s own clinical notes is a specific and legitimate reason to reject a
treating physician’s opinion that is contradicted.” (Doc. 16 at 16 (citing Valentine
v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009)). Therefore,
the ALJ had a reasonable basis for rejecting Dr. Warr’s opinion, even if she was
factually incorrect.
Mr. Iserloth argues that the government’s decision to defend the ALJ’s
position was substantially unjustified, and cites to Shafer v. Astrue, 518 F.3d 1067
(9th Cir. 2008). (Doc. 23 at ). In Shafer, the Ninth Circuit held that the
government’s defense of the ALJ’s opinion was not substantially justified. The
Court reviewed the ALJ’s opinion and found it was “ ‘infected’ with procedural
errors.” Id. at 1068. The Ninth Circuit remanded the matter because the ALJ’s
opinions were “factually inaccurate” and that he repeatedly “made no finding” or
failed to mention the physicians’ opinions that didn’t support his conclusory
opinion of non-disability. Shafer v. Barnhart, 120 Fed. Appx. 688, 692-96 (9th
Cir. 2005). Here, however, the ALJ’s errors were not arbitrary, merely lacking in
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specificity. As such, the holding of Shafer is not germane to the facts of this case,
and the government was substantially justified in defending the Commissioner’s
position.
VII. Conclusion
For the reasons stated above, IT IS HEREBY ORDERED that Plaintiff’s
Application for Award of EAJA Fees (Doc. 20) is DENIED.
Dated the 18th day of April, 2018.

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