Staggs v. Commissioner Social Security Administration

Filing 31

ORDER: Granting Application for Fees Pursuant to EAJA 25 . See attached 4 page order for full text. Signed on 4/2/2012 by Judge Marco A. Hernandez. (tll)

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

GEORGIA N. STAGGS
No. 03:10-CV-1325-HZ
Plaintiff,
OPINION & ORDER
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

Max Rae
P.O. Box 7790
Salem, OR 97303
Attorney for Plaintiff
Adrian L. Brown
U.S. ATTORNEY’S OFFICE
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204

1 - OPINION & ORDER

Mathew W. Pile
SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Georgia N. Staggs brought this action seeking judicial review of the
Commissioner’s final decision to deny supplemental security income (SSI). In an October 14,
2011 Opinion & Order, I reversed the Commissioner’s decision, concluding that the
Administrative Law Judge (ALJ) had improperly omitted Plaintiff’s mental impairment at step
two of the disability analysis. I ordered that the case be remanded for additional proceedings.
Judgment was entered on October 14, 2011.
Plaintiff now seeks an award of fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 (EAJA). Defendant opposes the motion, arguing that the Commissioner’s
decision was substantially justified. For the reasons explained below, I agree with plaintiff and
award plaintiff fees in the amount of $5,519.58.
STANDARD
EAJA requires an award of attorney’s fees to prevailing parties in civil actions against
the United States unless the position of the United States was substantially justified. 28 U.S.C. §
2412(d)(1)(A). There is no dispute that plaintiff was the prevailing party. Defendant makes no
objection to the calculation of the amount of fees requested. The only issue is whether the
Commissioner’s position was substantially justified.
The burden is on the Commissioner to show that his position was substantially justified.

2 - OPINION & ORDER

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, 954 F.2d 329, 332 (9th Cir 1988). To establish that its
position was substantially justified, the government must show that the underlying ALJ decision
had “a reasonable basis both in law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
This involves looking to the record of both the underlying government conduct at issue and the
totality of circumstances present before and during litigation. Barry v. Bowen, 825 F.2d 1324,
1330 (9th Cir. 1987).
DISCUSSION
The dispositive issue in this case was whether the ALJ erred by failing to account for
Plaintiff’s personality disorder as a severe impairment at step two. The ALJ recited record
evidence from Drs. David Sweet and Maribeth Kallemeyn—both of whom had evaluated
Plaintiff twice and diagnosed her with a personality disorder. Tr. 16, 17. Defendant conceded
that these diagnoses were from acceptable medical sources that occurred during the relevant
period. See Oct. 14, 2011 Op. & Ord. at 7. Dr. Dorothy Anderson, a state consultant to whom
the ALJ gave “significant weight”, had also diagnosed Plaintiff with a personality disorder. Id.
Despite these multiple diagnoses, the ALJ omitted personality disorder as a severe impairment.
There was no reasonable basis to ignore the personality disorder at step two, particularly when
the inquiry is de minimus. Id. at 6. The Commissioner’s position was not substantially justified.
///
///

3 - OPINION & ORDER

CONCLUSION
Plaintiff’s application for an award of EAJA fees [#25] is granted. Plaintiff is awarded
$5,519.58 in fees.
IT IS SO ORDERED.

Dated this 2nd

day of April, 2012

s/Marco A. Hernandez
MARCO A. HERNANDEZ
United States District Judge

4 - OPINION & ORDER