Garrison v. Commissioner Social Security Administration

Filing 28

OPINION & ORDER: Plaintiff's Application for Fees and Expenses 24 pursuant to EAJA is GRANTED. Plaintiff is awarded attorney's fees and costs in the amount of $5,403.25. See 6-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LISA A. GARRISON,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
Arthur W. Stevens III
BLACK, CHAPMAN, WEBBER & STEVENS
221 Stewart Ave., Suite 209
Medford, OR 97501
Attorney for Plaintiff
S. Amanda Marshall
United States Attorney, District of Oregon
Ronald K. Silver
Assistant United States Attorney
U.S. ATTORNEY’S OFFICE, DISTRICT OF OREGON
1000 SW Third Avenue, Suite 600
Portland, OR 97204

1 - OPINION & ORDER

No. 1:13-cv-01671-HZ
OPINION & ORDER

Lars J. Nelson
Special Assistant United States Attorney
SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
HERNÁNDEZ, District Judge:
Plaintiff Lisa Garrison’s counsel presently seeks an award of $5,382.85 in fees pursuant
to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, and costs in the amount of
$20.40. Defendant opposes the fee request, arguing that the government’s position was
substantially justified and the requested fees are unreasonable. The Court disagrees, and grants
Plaintiff’s application for fees and costs.
BACKGROUND
After the Administrative Law Judge (ALJ) issued her decision in February 2012, which
found Plaintiff not disabled, Plaintiff submitted additional evidence from the Klamath County
Department of Mental Health regarding Plaintiff’s mental health. Garrison v. Comm'r Soc. Sec.
Admin., No. 1:13-CV-01671-HA, 2014 WL 5018811, at *6 (D. Or. Oct. 7, 2014). Most
importantly, Plaintiff submitted a bio-psychosocial assessment and a psychiatric diagnostic
review, both of which diagnosed Plaintiff with a number of impairments not considered by the
ALJ, including post-traumatic stress disorder, psychotic disorder NOS, and alcohol-induced
persistent dementia. Id. The Appeals Council erroneously rejected Plaintiff’s additional evidence
as untimely. Id. Therefore, District of Oregon Judge Haggerty reversed the ALJ’s decision and
remanded for consideration of whether the new evidence submitted to the Appeals Council
would change the outcome of the ALJ’s decision. Id.
///

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STANDARDS
“For the court to award attorney’s fees and costs pursuant to the EAJA, it must be shown
that (1) the plaintiff is the prevailing party; (2) the government has not met its burden of showing
that its positions were substantially justified or that special circumstances make an award unjust;
and (3) the requested attorney’s fees and costs are reasonable.” Perez–Arellano v. Smith, 279
F.3d 791, 793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)). Here, there is no dispute that
Plaintiff was the prevailing party.
DISCUSSION
Defendant argues that the government’s position was substantially justified and the
requested attorney’s fees are unreasonable. Defendant’s arguments are unavailing.
I.

Substantial Justification

The burden is on the Commissioner to show that his position was substantially justified.
Hardisty v. Astrue, 592 F.3d 1072, 1076 n. 2 (9th Cir. 2010). Although “Congress did not intend
fee shifting [under EAJA] to be mandatory [,]” “EAJA creates a presumption that fees will be
awarded to prevailing parties.” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). However, the
“government's failure to prevail does not raise a presumption that its position was not
substantially justified.” Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). To establish that its
position was substantially justified, the government must show that the underlying decision by
the ALJ had “a reasonable basis both in law and fact.” Pierce v. Underwood, 487 U.S. 552, 565
(1988); Renee v. Duncan, 686 F.3d 1002, 1017 (9th Cir. 2012).
The essence of Judge Haggerty’s decision is that the Appeals Council erred in
determining that the supplemental mental health records had no bearing on whether Plaintiff was
disabled. It appears that the Appeals Council made a mistake in determining the dates of the new

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mental health evidence. Therefore, the Council did not consider the merits of the evidence
because it did not consider the evidence relevant to the ALJ’s disability determination. This
failure to consider the new evidence means the Commissioner’s position lacked a reasonable
basis in fact, making it not substantially justified.
This case is unlike the recent unpublished Ninth Circuit memorandum opinion cited by
Defendant, in which the Court denied EAJA fees where remand was based solely on newly
submitted evidence. See Linge v. Colvin, No. 13-35430, 2015 WL 223553, at *1 (9th Cir. Jan.
16, 2015). In Linge, the new evidence at issue was a report indicating that the claimant may have
sleep apnea and it did not discuss limitations clearly at odds with the ALJ’s determination of the
claimant’s residual functional capacity (RFC). In contrast, here the new reports regarding
Plaintiff’s mental health are likely at odds with the ALJ’s findings of Plaintiff’s RFC, as the
reports are relevant to Plaintiff’s mental health at the time of the ALJ’s decision. As Judge
Haggerty noted, “this new evidence gives rise to a reasonable possibility that the outcome would
have changed.” Garrison v. Comm'r Soc. Sec. Admin., No. 1:13-CV-01671-HA, 2014 WL
5018811, at *6 (D. Or. Oct. 7, 2014).
II.

Reasonableness of Fees

As to the amount of fees requested, an award of attorney’s fees under EAJA must be
reasonable. 28 U.S.C. § 2412(d)(2)(A). The district court possesses “considerable discretion” in
determining the reasonableness of a fee award. Webb v. Ada Cnty., 195 F.3d 524, 527 (9th Cir.
1999); see also, Keyser v. Astrue, No. 01:08–cv–01268–CL, 2012 WL 78461, at *3 (D. Or. Jan.
10, 2012) (district court exercises discretion in awarding fees under EAJA). The starting point
for a reasonable fee is the number of hours expended multiplied by a reasonable hourly rate.

4 - OPINION & ORDER

Hensley v. Eckerhart, 461 U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir.
1998).
“The fee applicant bears the burden of documenting the appropriate hours expended in
the litigation and must submit evidence in support of those hours worked.” Gates v. Deukmejian,
987 F.2d 1392, 1397 (9th Cir. 1992) (citation omitted). “The party opposing the fee application
has a burden of rebuttal that requires submission of evidence to the district court challenging the
accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in
its submitted affidavits.” Id. at 1397–98 (citation omitted). Where documentation is inadequate,
the court may reduce the requested award. Hensley, 461 U.S. at 433–34.
Defendant does not oppose the requested $20.40 in expenses from certified mailing of
summonses. These costs are reasonable and properly awarded under EAJA. 28 U.S.C. §
2412(a)(1) (EAJA allows prevailing party to recover costs as enumerated in 28 U.S.C. § 1920);
28 U.S.C. §§ 2412(b), 2412(d)(1)(A) (EAJA entitles prevailing party to other “expenses” in
addition to the costs allowed under subsection (a)(1)); Int'l Woodworkers Of Am. v. Donovan,
792 F.2d 762, 767 (9th Cir. 1985) (upholding EAJA award including costs for telephone calls,
postage, air courier, and attorney travel expenses); League of Wilderness Defenders–Blue
Mountains Biodiversity Project v. Smith, 491 F.Supp.2d 980, 989 (D. Or. 2007) (EAJA award
included filing fee, travel expenses, and postage).
However, Defendant contends that deficiencies in Plaintiff’s briefing constitute special
circumstances that render an award of fees unjust or unreasonable. Defendant primarily argues
that Plaintiff misled the Court in her briefing and submitted an opening brief devoid of legal
argument. Plaintiff explains in her reply that while the brief may have suffered from “poor
drafting” and a lack of clarity, there was no intent to mislead the Court. The Court finds that,

5 - OPINION & ORDER

while Plaintiff’s briefing is not a model of clarity, there is no evidence of an intent to mislead the
Court. Defendant does not cite, and this Court does not find, precedent for denying EAJA fees
due to a less than exemplary work product.
Finally, Defendant urges the Court to reduce Plaintiff’s requested hours by 10.3 hours—
the time Plaintiff’s counsel claims he spent preparing the opening brief for the federal court
proceeding. Defendant contends that the brief “is largely copied from the earlier briefing already
submitted to the Appeals Council.” Def.’s Resp. 8. The Court compared Plaintiff’s Appeals
Council brief (Tr. 298-319) with the opening brief (ECF 22) and does not find the requested fees
excessive or unreasonable. While the briefs are largely identical, it is clear that Plaintiff’s
counsel spent some time adapting the Appeals Council brief for filing in federal court. In
addition, Plaintiff’s counsel submits a detailed explanation of how he spent the 10.3 hours in
question. Given the length and importance of the opening brief, it is credible that counsel may
have worked the entirety of the hours claimed. Therefore, the Court finds the fees reasonable.
CONCLUSION
For the foregoing reasons, Plaintiff’s Application for Fees and Expenses [24] pursuant to
EAJA is GRANTED. Plaintiff is awarded attorney’s fees and costs in the amount of $5403.25.

IT IS SO ORDERED.

Dated this ________ day of____________________, 2015

MARCO A. HERNÁNDEZ
United States District Judge

6 - OPINION & ORDER