Williamson v. Commissioner Social Security Administration

Filing 25

ORDER: The Court DENIES Plaintiff's Motion 21 for fees under the Equal Access to Justice Act. Signed on 01/09/2012 by Judge Anna J. Brown. See attached Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

CHRISTINE LEE WILLIAMSON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant
KATHRYN TASSINARI
ROBERT A. BARON
Harder Wells Baron & Manning, PC
474 Willamette Street
Suite 200
Eugene, OR 97401
[phone]
Attorneys for Plaintiff
S. AMANDA MARSHALL
Acting United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
1 - OPINION AND ORDER

3:09-CV-6156-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
Social Security Administration
L. JAMALA EDWARDS
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 901
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
This matter comes before the Court on Plaintiff Christine
Lee Williamson's Motion (#21) for Fees under the Equal Access to
Justice Act in which she seeks $10,123.81 in attorneys' fees
pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412(d).
For the reasons that follow, the Court DENIES Plaintiff's
Motion.

BACKGROUND
Plaintiff filed her application for SSI on October 4, 2005,
and alleged a disability onset date of December 31, 1997.
application was denied initially and on reconsideration.

The
Tr. 81.

An Administrative Law Judge (ALJ) issued a decision on May 30,
2008, in which he found Plaintiff is not entitled to benefits.
That decision became the final decision of the Commissioner on
April 9, 2009, when the Appeals Council denied Plaintiff's

2 - OPINION AND ORDER

request for review.
On June 4, 2009, Plaintiff sought review of the
Commissioner’s decision in this Court.
On June 23, 2010, this Court issued an Opinion and Order in
which it affirmed the decision of the Commissioner and dismissed
this matter with prejudice.
On June 17, 2011, the Ninth Circuit affirmed in part and
reversed in part this Court's decision and remanded the matter to
the Commissioner for further administrative proceedings.
On September 14, 2011, Plaintiff filed an Application for
Fees pursuant to EAJA.

STANDARDS
Under EAJA the court may award attorneys' fees to a
plaintiff's attorney in an action against the United States or
any agency or official of the United States if (1) the plaintiff
is the prevailing party, (2) the government has not met its
burden to show that its positions during the case were
substantially justified or that special circumstances make such
an award unjust, and (3) the requested attorneys' fees are
reasonable.

28 U.S.C. § 2412(d)(1)(A).

See also Perez-Arellano

v. Smith, 279 F.3d 791, 792 (9th Cir. 2002).
A "prevailing party" is one who has been awarded relief by
the court on the merits of at least some of his claims.

3 - OPINION AND ORDER

Hanrahan

v. Hampton, 446 U.S. 754, 758 (1980).

"Enforceable judgments and

court-ordered consent decrees create 'the material alteration of
the legal relationship of the parties' necessary to permit an
award of attorney's fees."

Buckhannon Bd. and Care Home, Inc. v.

W. Va. Dep't of Health and Human Res., 532 U.S. 598, 604
(2001)(internal citation omitted).
A prevailing plaintiff is not entitled to attorneys' fees
under EAJA when the Commissioner's positions were substantially
justified.
2002).

Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.

The Commissioner's positions are substantially justified

if they are reasonably based on both law and fact.
Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)).

Id. (citing
The

Commissioner's failure to prevail on the merits of his positions
does not raise a presumption of unreasonableness.

United States

v. Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002)(citing Kali v.
Bowen, 854 F.2d 329, 332 (9th Cir. 1988)).
Under EAJA the hourly rate for attorneys' fees is capped at
$125.00, but the statute allows the Court to make adjustments for
cost of living or other appropriate "special factor[s]."
U.S.C. § 2412(d)(2)(A).

28

If the government acts in bad faith,

however, fees may be awarded at the market rate rather than at
the EAJA-mandated rate.

28 U.S.C. §§ 2412(b), (c).

See also

Brown v. Sullivan, 916 F.2d 492, 497 (9th Cir. 1990)("The
district court may award attorney fees at market rates for the
4 - OPINION AND ORDER

entire course of litigation . . . if it finds that the fees
incurred during the various phases of litigation are in some way
traceable to the Secretary's bad faith.").

The "bad faith

exception is 'a narrow one,' typically invoked in cases of
'vexatious, wanton, or oppressive conduct.'"

Id. at 495 (quoting

Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir. 1987), and citing
F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417
U.S. 116 (1979)).

The bad-faith exception "is punitive, and the

penalty can be imposed ‘only in exceptional cases and for
dominating reasons of justice.’”

Beaudry Motor Co. v. Abko Prop.

Inc., 780 F.2d 751, 756 (9th Cir. 1986)(quoting United States v.
Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979)).

DISCUSSION
Plaintiff seeks $10,123.81 in attorneys' fees for 57.5 hours
of work performed by two attorneys:
Baron.

Kathryn Tassinari and Robert

It is undisputed that Plaintiff is a prevailing party

under EAJA.
Plaintiff contends she is entitled to attorneys' fees at the
rates specified in EAJA because Defendant's positions were not
substantially justified.

Defendant, in turn, contends his

positions were substantially justified and taken in good faith.
I.

Standard for substantial justification
"The test for whether the government is substantially

5 - OPINION AND ORDER

justified is one of 'reasonableness.'"

Gonzales v. Free Speech

Coalition, 408 F.3d 613, 618 (9th Cir. 2005).

The Supreme Court

has held the government’s position is substantially justified if
there is a “genuine dispute” over which “reasonable people could
differ.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988).

See

also Kenny v. United States, 458 F.3d 1025, 1032 (9th Cir.
2006)(same).

Substantially justified means “justified in

substance or in the main"; i.e., "justified to a degree that
could satisfy a reasonable person."
F.3d at 1032.

Id.

See also Kenny, 458

The position does not need to be "justified to a

high degree" but need only be "undeserving for sanctions for
frivolousness."

Id. at 565-66.

make this showing.

The government has the burden to

Gonzales, 408 F.3d at 618.

The substantial justification standard is a separate and
lower standard than the “substantial evidence” standard that
governs review of the merits of disability determinations.
Pierce, 487 U.S. at 568-69.

Accordingly, courts have held the

Commissioner’s position may be substantially justified even if
substantial evidence in the record does not support his decision.
Pierce, 487 U.S. at 566 n.2; Lewis, 281 F.3d at 1083.
II.

Analysis
In its June 23, 2010, Opinion and Order, this Court

concluded the ALJ (1) did not err when he rejected Plaintiff's
testimony as to the intensity, persistence, and limiting effects
6 - OPINION AND ORDER

of her impairments; (2) did not err when he rejected the opinion
of Judith Eckstein, Ph.D.; and (3) did not err when he gave
limited weight to the opinion of Diane Brending, Plaintiff's case
manager.
As noted, the Ninth Circuit affirmed in part and reversed in
part.

Specifically, the Ninth Circuit concluded the ALJ did not

err when he rejected Plaintiff's testimony, when he gave limited
weight to Brending's testimony, and when he gave limited weight
to Dr. Eckstein’s opinion.

Accordingly, the Ninth Circuit

affirmed this Court's opinion with respect to those conclusions.
Nevertheless, the Ninth Circuit concluded the ALJ erred when he
concluded Plaintiff had moderate limitations in concentration,
persistence, and pace, but failed to account for those
nonexertional limitations when he assessed Plaintiff's Residual
Functional Capacity (RFC) and posed hypothetical questions to the
Vocational Expert (VE) that did not include those limitations.
Accordingly, the Ninth Circuit remanded the matter to the
Commissioner for further administrative proceedings in which the
ALJ was to reevaluate Plaintiff's RFC to include Plaintiff's
limitations in concentration, persistence, and pace.
Defendant asserts its position was substantially justified
because the Ninth Circuit affirmed the majority of this Court's
Opinion and Order and concluded the ALJ did not err in the
majority of his findings.

7 - OPINION AND ORDER

The Court agrees.

The Ninth Circuit

remanded as to a limited issue and for a specific purpose.

On

this record the Court concludes the government's position both at
the administrative level and before this Court was "justified
. . . in the main" and "to a degree that could satisfy a
reasonable person."
Accordingly, the Court denies Plaintiff's Motion for Fees
Under the Equal Access to Justice Act.

CONCLUSION
For these reasons, the Court DENIES Plaintiff's Motion (#21)
for Fees under the Equal Access to Justice Act.
IT IS SO ORDERED.
DATED this 9th day of January, 2012.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

8 - OPINION AND ORDER