Brainard v. Commissioner of Social Security Administration

Filing 33

OPINION AND ORDER. For these reasons, the court denies Plaintiff's Motion of EAJA fees. IT IS SO ORDERED. Signed on 02/28/2013 by Judge James A. Redden. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SHARON BRAINARD,

Plaintiff,

3:11-CV-00809 RE

OPINION AND ORDER

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

Defendant.

REDDEN, Judge:

Plaintiff seeks an award of fees in the amount of$6,374 under the Equal Access to Justice
Act ("EAJA"), 28 U.S.C. § 2412(d)(l)(A). Because I find that the position of the Commissioner
was substantially justified, plaintiffs application is denied.

Ill
Ill
Ill

Background
Plaintiff alleged disability since June 1, 2007, due to diabetes, liver disease, kidney
problems, Hepatitis C, arthritis, depression, and cysts. Her application was denied initially and
upon reconsideration. After a July 2009 hearing, an ALJ found her not disabled, finding, in pmi,
that plaintiffs testimony as to the symptoms of her impairments was not entirely credible.
Plaintiff sought review in this comi, and after reviewing the record, this court reversed the
decision of the Commissioner and remanded this matter for the calculation and payment of
benefits on the basis that the ALJ did not provide clear and convincing reasons for discrediting
plaintiffs testimony.
Plaintiff filed the current application for fees (#18). The Commissioner asserts that his
position was substantially justified and that no att01ney fees should be awarded under the EAJA.

Standards
Under the EAJA, a prevailing party is entitled to recover attorneys fees "unless the comi
finds that the position of the United States was substantially justified or that special
circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). "The test for whether the
government is substantially justified is one of reasonableness." Gonzales v. Free Speech

Coalition, 408 F.3d 613,618 (9'h Cir. 2005)(internal quotations omitted). The Commissioner's
position need not be justified to a high degree, but to a degree that could satisfY a reasonable
person. Pierce v. Underwood, 487 U.S. 552, 562-63 (1988); Bay Area Peace Navy v. United

States, 914 F.2d 1224, 1230 (9'h Cir. 1990).
A substantially justified position does not necessarily mean a correct position; instead
there may be a dispute over which reasonable minds could differ. Gonzales, 408 F.3d at 618. A
2 - OPINION AND ORDER

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 (9 1h Cir. 2010), cert. denied, 2011 WL 1832858
(May 16, 2011 ). The government bears the burden of demonstrating substantial justification.

Kali v. Bowen, 854 F.2d 329, 332 (9'h Cir. 1988). The Commissioner's failure to prevail on the
merits of his positions does not raise a presumption ofumeasonableness. U.S. v. lvfarolf, 277
F.3d 1156, 1162 (91h Cir. 2002)(citing Kali v. Bowen, 854 F.2d 329,332 (9'h Cir. 1988)).

Discussion
Plaintiff seeks an award of attorneys' fees and costs totaling $6,374. Plaintiff maintains
that the Commissioner's bases for opposing Plaintiffs application for Social Security benefits at
the administrative and district court level were not substantially justified.
Defendant does not dispute that Plaintiff is the prevailing patty nor challenge the
reasonableness of the amount requested. Defendant contends that the positions taken by the
Commissioner in opposition to Plaintiffs application for benefits were substantially justified
because the ALJ had a reasonable basis in law and fact to conclude that Plaintiff was "not
entirely credible" in her statements concerning her impahments and her resulting limitations.
The Commissioner notes that the ALJ is responsible for determining the credibility of
witnesses. The ALJ 's determination not to credit Plaintiffs testimony and the opinions of Drs.
Aoki and Page had reasonable bases in law. The ALJ discussed and weighed the testimony,
evidence and opinions, and gave reasons for the weight he gave the evidence. Tr. 60-63. The
ALJ had a reasonable basis in law for relying on the opinion of non-examining acceptable
medical sources over the opinion of an "other" source, i.e, a naturopathic doctor. Tr. 63-63.

Turner v. Comm 'r ofSoc. Sec., 613 F.3d 1217, 1223-24 (9'h Cir. 2010).
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The ALJ's findings had a reasonable basis in fact. The ALJ gave little weight to Dr.
Aoki's opinion because there was not objective medical evidence to support the opinion that
Plaintiffs symptoms arose from kidney and liver damage, and because the ALJ found Dr. Aoki's
opinion inconsistent with his treatment notes. Tr. 62, 426.
The ALJ was substantially justified in his analysis of Dr. Page's opinion. Tr. 63,620.
Dr. Page's language was somewhat ambiguous. Tr. 620.
This comt found the ALJ ened when he failed to provide clear and convincing reasons
for rejecting Plaintiffs subjective testimony. Although the ALJ failed to meet that high standard,
his position was substantially justified in fact and in law. In fact, the ALJ had the legal authority
and the obligation to assess the credibility of the witnesses, and his conclusions as to Plaintiffs
testimony had some factual basis in the record. The court, therefore, concludes the
Commissioner had a reasonable basis in law and in fact to uphold the ALJ' s credibility finding at
the administrative level and to supp01t Defendant's opposition to Plaintiffs challenge of that
decision in this court. The Commissioner's positions relative to Plaintiffs credibility were
substantially justified.
Conclusion

For these reasons, the comt denies Plaintiffs Motion ofEAJA fees.
IT IS SO ORDERED.
Dated this

Z 'Bday ofFebrumy, 2013.

4 - OPINION AND ORDER