Broadbent v. Commissioner of Social Security Administration

Filing 32

ORDER ON EAJA Attorney's Fees. Signed on 09/11/2013 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
2:12-cv-00770-MA

LEAH E. BROADBENT,

ORDER ON EAJA
ATTORNEY'S FEES

Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge
In this proceeding,

plaintiff seeks an award of attorney's

fees in the amount of $4,841.46 under the Equal Access to Justice
Act

(EAJA),

position

of

28 U.S.C.
the

§

2412(d)(l)(A).

Commissioner was

not

Because I find that the
substantially

justified,

plaintiff's application for fees is granted.
BACKGROUND

Plaintiff protectively filed applications for DIB and SSI on
June 17,

2008,

alleging disability due to fibromyalgia,

"maybe

Asperger's," migraines, three tumors in her right breast, plantar
fasciitis, and depression.

Tr. 170.

Her applications were denied

initially and upon reconsideration.

On October 25, 2010, the ALJ

1 -ORDER ON EAJA ATTORNEY'S FEES

issued a decision finding plaintiff not disabled within the meaning
of the Act.

After the Appeals Council declined review of the ALJ's

decision, plaintiff timely filed a complaint in this court.
Plaintiff argued that the Commissioner failed to consider two
medical opinions submitted to the Appeals Council after the ALJ
issued his decision.

I

concluded that the opinion from Richard

Wernick, M.D., submitted to the Appeals Council did not deprive the
ALJ's decision of substantial evidence because it was materially
a

prior

opinion

from

Dr.

Wernick

that

the

ALJ

duplicative

of

considered.

With respect to a second opinion from Susan Peeples,

FNP, however, I concluded that her opinion submitted to the Appeals
Council contained additional functional limitations that required
consideration by the ALJ.

Thus, pursuant to Brewes v. Comm'r Soc.

Sec. Admin, 682 F.3d 1157, 1162 (9th Cir. 2012), I remanded to the
Commissioner for consideration of Ms. Peelpes's second opinion.
Plaintiff,

as the prevailing party,

subsequently filed the

present application (*28) for attorney's fees under the EAJA.
Commissioner opposes the award of fees,

The

arguing solely that her

position was substantially justified, and therefore, plaintiff is
not entitled to fees under the EAJA.

DISCUSSION
I.

Substantial Justification
Under the EAJA,

a prevailing party is entitled to recover

attorney's fees "unless the court finds that the position of the
2 - ORDER ON EAJA ATTORNEY'S FEES

United

States

was

substantially

justified

circumstances make an award unjust."

or

28 U.S.C.

§

that

special

2412(d) (1) (A).

"The test for whether the goVernment is substantially justified is
one of reasonableness."
F. 3d 613,

618

Gonzales v.

(9th Cir. 2005)

Free Speech Coalition,

(internal quotation omitted) .

408
The

Government's position need not be justified to a high degree, but
to a degree that could satisfy a reasonable person.
Underwood,

487 U.S.

552,

563-66

(1988);

Pierce v.

Bay Area Peace Navy v.

United States, 914 F.2d 1224, 1230 (9th Cir. 1990).
A position is substantially justified if it has a reasonable
basis

in law and fact.

Pierce,

487

U.S.

at

565;

Hardisty v.

Astrue, 592 F.3d 1072, 1079 (9th Cir. 2010), cert. denied,
131

S.Ct.

2443

(2011).

The

question

is

not

U.S.

whether the

government's position as to the merits of plaintiff's disability
claim was "substantially justified."
1067,

1071

(9th Cir.

2008).

Rather,

Shafer v. Astrue,
the

518 F.3d

relevant question is

whether the Commissioner's decision to defend the procedural errors
on appeal was substantially justified.

Id.

The government bears

the burden of demonstrating substantial justification.

Kali v.

Bowen, 854 F.2d 329, 332 (9th Cir. 1988).
The Commissioner's position that the ALJ's decision was still
supported by substantial evidence in light of Ms. Peeples's second
opinion

was

not

substantially

justified.

The

Commissioner's

regulations are clear that evidence submitted to and considered by
3- ORDER ON EAJA ATTORNEY'S FEES

the

Appeals

Council

is

part

of

the

record

that

must

substantial evidence to support the ALJ's decision.
F.3d at

1162

(citing 20 C.F.R.

§

404.970(b)).

provide

Brewes,

The

682

additional

limitations in Ms. Peeples's second opinion were clear on the face
of the record,

and were not

considered in the ALJ's decision.

Moreover, the reasons cited by the ALJ for rejecting Ms. Peeples's
first opinion were not sufficiently germane to discredit her second
opinion.

Thus, the Commissioner's duty to consider Ms. Peeples's

second opinion was clear on the face of the Commissioner's own
regulations, and the failure to do so was clear on the face of the
The

record.

Commissioner's

position

was

not

substantially

justified.
II.

EAJA Award

An award of attorney's fees under the EAJA must be reasonable.
28 U.S. C.

§

2412 (d) ( 2) (A) .

The court has an independent duty to

review the fee request to determine its reasonableness.

Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983); Moreno v. City of Sacramento,
534

F. 3d 1106,

1111

(9th Cir.

2008).

The starting point for a

reasonable fee is the number of hours expended multiplied by a
reasonable hourly rate.
154 F.3d 986,
burden

of

988

(9th Cir.

documenting

litigation and must
worked.

Hensley, 461 U.S. at 433; Atkins v. Apfel,

the

submit

1998).

The fee applicant bears the

appropriate

hours

evidence

support

in

expended
of

in

the

those hours

Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).

4 -ORDER ON EAJA ATTORNEY'S FEES

Where

documentation

requested award.

is

inadequate,

the

court

may

reduce

the

Hensley, 461 U.S. at 433-34.

The Commissioner does not dispute plaintiff's counsel's hours
worked and hourly rate, and I find them reasonable.

Accordingly,

plaintiff is awarded $4,841.46.
CONCLUSION

For the reasons stated above, plaintiff's Application for Fees
Pursuant to EAJA (#28), is GRANTED.

Plaintiff is awarded $4,841.46

under the EAJA, subject to any offsets allowed under the Treasury
Offset Program as discussed in Astrue v.
(2010) .
to

Ratliff,

560 U.S.

586

If there are no such offsets, the check shall be· made out

plaintiff's

attorney

and

mailed

to

plaintiff's

attorney's

office.
IT IS SO ORDERED.
DATED this~ day of September, 2013.

Malcolm F. Marsh
United States District Judge

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