Allen-Howard v. Commissioner Social Security Administration

Filing 22

OPINION AND ORDER. The Commissioner's position was substantially justified and plaintiff's Motion for Attorney Fees 18 is denied. IT IS SO ORDERED. Signed on 02/05/2013 by Judge James A. Redden. (pvh)

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

3:11-cv-01116 RE

KATHLEEN ALLEN-HOWARD,

OPINION AND ORDER

Plaintiff,

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

Defendant.

REDDEN, Judge:

Plaintiff seeks an award of fees in the amount of $7,038.41 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.
Background

Plaintiff alleges disability since September 1, 2006, due to brain tumor, depression,
anxiety, cognitive disorder, and memory disorder. Her application was denied initially and upon

'
reconsideration. After a F ebmary 201 0 hearing, an ALJ found her not disabled. Plaintiff sought
review in this court, and the case was remanded to the ALJ who ened by finding plaintiff able to
perform the job requirements of an Office Helper and Mail Room Sorter, based on the reasoning
level requirements.
Plaintiff filed the cunent application for fees (#18). The Connnissioner asserts that his
position was substantially justified and that no attorney fees should be awarded under the EAJA.
Discussion
The EAJA "authorizes federal courts to award attorneys' fees, court costs, and other
expenses when a party prevails against the United States .... " Hardisty v. Astrue, 592 F.3d 1072,
1076 (9'h Cir. 2010)(citing United States v. 313.34 Acres ofLand, 897 F.2d 1473, 1477 (9'h Cir.
1989)). The EAJA is not, however, an automatic fee-shifting statute. Federal Election Comm 'n
v. Rose, 806 F.2d 1081, 1090 (D.C. Cir. 1986). The EAJA is an exception to the "American

Rule" that a prevailing litigant shall not collect attorneys' fees from the losing party. Hardisty,
592 F.3d at 1076.
Under the EAJA, a prevailing party is entitled to recover attorneys fees "unless the court
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)(l )(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 conect position; instead
there may be a dispute over which reasonable minds could differ. Gonzales, 408 F .3d at 618. A
position is substantially justified if it has a reasonable basis in law and fact. Pierce, 487 U.S. at
565; Hardisty v. As/rue, 592 F.3d 1072, 1079 (9'h 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).
Although plaintiffs residual functional capacity limited her to "1-2 step tasks," the two
jobs identified by the Vocational Expert "may require the ability to do more than perform '1-2
step tasks,"' a limitation "ve1y similar to the definition for level one reasoning." ECF No. 16 at
3-4. This comi stated that the law on this point "is not clear and the Ninth Circuit has not
addressed it." ECF No. 16 at.
Plaintiff acknowledged that the law is umesolved. The Commissioner's position had a
reasonable basis in law and fact and was substantially justified.

Conclusion
The Commissioner's position was substantially justified and plaintiffs Motion for
Attorney Fees (#18) is denied.
IT IS SO ORDERED.
DATED this

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