Davidson v. Commissioner Social Security Administration

Filing 28

ORDER: Plaintiff's application for an award of EAJA fees 24 is granted. Plaintiff is awarded $4,590.49 in fees. See 3-page order attached. Signed on 1/30/2012 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CHRISTOPHER A. DAVIDSON,
Plaintiff,

No. 3:10-cv-6284-HZ

v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,

ORDER

Defendant.
Plaintiff Christopher Davidson brought this action seeking review of the Commissioner's
decision to deny his applications for disability insurance benefits (DIB) and supplemental
security income (SSI). In a September 27, 2011 Opinion & Order, I reversed the Commissioner's
decision, concluding that the Administrative Law Judge (ALJ) had improperly rejected plaintiff's
treating physician's opinion. I ordered that the case be remanded for an award of benefits to
plaintiff. Judgment was entered on September 27, 2011.
Plaintiff now seeks an award of fees pursuant to the Equal Access to Justice Act, 28
1 - ORDER

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 $4,590.49.
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 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.
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).
In this case, the ALJ offered two reasons in support of rejecting treating physician Dr.
David Dryland's opinion: that Dr. Dryland's notes were not in the record and that the opinion
was inconsistent with the "totality of the evidence." In fact, Dr. Dryland's notes were in the
record. And, the law requires the ALJ to be more specific than simply stating that a treating
physician's opinion is inconsistent with the "totality of the evidence." See Sept. 27, 2011 Op. &
Ord. at pp. 13-14. Finally, although defendant argues that the ALJ's reliance on Dr. Adesman's
2 - ORDER

opinion over Dr. Dryland's opinion was reasonable, I concluded, and expressly stated, that "[i]t
was unreasonable for the ALJ to rely on Dr. Adesman's December 10, 2008 chart note as
substantial evidence conflicting with Dr. Dryland's opinion." Id. at p. 13. There was no
reasonable basis in fact or law for the ALJ's position. The Commissioner's position was not
substantially justified.
CONCLUSION
Plaintiff's application for an award of EAJA fees [#24] is granted. Plaintiff is awarded
$4,590.49 in fees.
IT IS SO ORDERED.
Dated this 30th

day of

January

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

3 - ORDER

, 2012