Doran v. Commissioner Social Security Administration

Filing 26

ORDER FOR EAJA FEES. Signed on 01/06/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:13-cv-01008-MA

MICHELE DORAN,

ORDER FOR EAJA FEES

Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge
Plaintiff seeks an award of attorney fees in the amount of
$5,634.03 under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§

2412 (d) (1) (A).

Commissioner

was

Because
not

I

find

that

substantially

the

position

justified,

of

the

plaintiff's

application for fees is granted.
BACKGROUND

Plaintiff protectively filed her applications for disability
insurance benefits

and

benefits on August 5,
disorder,

borderline

syncope,

supplemental
2009,

fibromyalgia,

alleging disability due to bipolar

personality

1 - ORDER FOR EAJA FEES

security income disability

headaches,

disorder,
depression,

chronic

back

anxiety,

pain,

and post

traumatic stress disorder.
initially and

upon

Plaintiff's applications were denied

reconsideration.

An ALJ held hearings

October 5, 2011, and January 5, 2012.
issued a

decision

denying

on

On January 12, 2012, the ALJ

plaintiff's

applications.

After

the

Appeals Council denied review, plaintiff timely appealed.
Plaintiff raised several independent substantive assignments
of error

The court

in her appeal.

rejected several of those

arguments, but agreed with plaintiff that the ALJ erred by failing
to offer specific and legitimate reasons for rejecting the opinion
of Dr.

Duvall.

Exercising discretion,

I

remanded the case for

further proceedings.
Plaintiff,

as the prevailing party,

subsequently filed the

present application for attorney fees under the EAJA (#22).
Commissioner
arguing

objects

solely

that

to
a

plaintiff's
fee

award

is

attorney

fee

inappropriate

The

application,
because

the

Commissioner's litigation position was substantially justified, and
therefore, plaintiff is not entitled to fees under the EAJA.
DISCUSSION
I.

Substantial Justification

Under the EAJA,

a prevailing party is entitled to recover

attorney's fees "unless the court finds that the position of the
United

States

was

substantially

justified

circumstances make an award unjust." 28 U.S.C.

or
§

that

special

2412(d) (1) (A).

"The test for whether the government is substantially justified is

2 - ORDER FOR EAJA FEES

one of reasonableness."
F.3d 613,

618

(9th Cir.

Gonzales v.

Free Speech Coalition,

2005) (internal quotation omitted).

408
The

government's position need not be justified to a high degree, but
to a degree that could satisfy a reasonable person.
Underwood,

487 U.S.

552,

563-66

(1988);

Pierce v.

Bay Area Peace Navy v.

United States, 914 F.2d 1224, 1230 (9th Cir. 1990).

A 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 (9th Cir. 2010).
The position of the United States includes the "government's
litigation position and the underlying agency action giving rise to
the civil action."
2013) .

The

Meier v. Colvin,

government

bears

727 F.3d 867, 870

the

burden

of

(9th Cir.

demonstrating

substantial justification.

Gutierrez v. Barnhart, 274 F.3d 1255,

1258

The

(9th

Cir.

2001).

government's

substantially justified at both stages.

position

Meier,

must

be

727 F.3d at 872;

Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008).
On

appeal

improperly

to

rejected

this
the

court,

plaintiff

opinion

of

argued

examining

that

physician

Ellison, M.D., and examining psychologists Keli Dean,
Robert Duvall, Ph.D.

the

ALJ
John

Psy.D. and

In the Opinion and Order (#20), I concluded

that the ALJ provided specific and legitimate reasons to discount
the opinions of Ors. Ellison and Dean because those opinions were
based on plaintiff's unchallenged negative credibility assessment.
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I also determined that plaintiff's negative credibility assessment
was readily supported by substantial evidence. I further concluded,
however, that the ALJ erred in rejecting Dr. Duvall's opinion that
plaintiff

had

marked

limitations

in

social

functioning.

The

Commissioner now argues that its defense of the ALJ's decision was
substantially justified because Dr. Duvall's opinion was based in
part on plaintiff's negative credibility determination that was
unchallenged on appeal.
As I
Duvall

I disagree.

specifically discussed in the Opinion and Order,
plaintiff's

considered

exaggeration

and

Dr.

inaccurate

reporting, but nevertheless concluded that her severe psychological
symptoms presented barriers to employment.
record,

In light of the entire

I concluded that simply pointing to plaintiff's negative

credibility determination was not a specific and legitimate reason,
backed by substantial evidence as a whole, to reject Dr. Duvall's
For this reason, and

opinion concerning plaintiff's limitations.
those

stated

in

the

Opinion

and

Order,

I

conclude

that

the

government's underlying action was not substantially justified in
this case.

Meier,

727

F. 3d at

872

(finding agency action not

substantially justified where ALJ's decision was not backed by
substantial evidence).

Moreover,

government's

agency

underlying

I

determine that because the

position

was

not

substantially

justified, the government's position defending the rejection of Dr.
Duvall's opinion was not substantially justified.

4 - ORDER FOR EAJA FEES

Shafer, 518 F.3d

at 1071 ("The government's position must be substantially justified
at each stage of the proceedings.") ; Moore v.
Sec.

2013

Admin.,

WL

6531159

(D.()r.

Dec.

Commissioner Soc.

12,

2013) (finding

Commissioner's position in defending doctor's improperly rejected
opinion was not substantially justified).

Therefore, plaintiff is

entitled to attorney fees under the EAJA.
I I .

EAJA Award

An award of attorney's fees under the EAJA must be reasonable.
28 U.S.C.

§

2412(d) (2) (A).

The court has an independent duty to

review the fee request to determine its reasonableness.

Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983); Moreno v. City of Sacramento,

534

F.3d 1106,

1111

(9th Cir.

2008).

The starting point for a

reasonable fee is the number of hours expended multiplied by a
reasonable hourly rate.
154 F.3d 986,
burden

of

988

(9th Cir.

documenting

litigation and must
worked.
Where

Hensley, 461 U.S. at 433; Atkins v. Apfel,

the

1998).

The fee applicant bears the

appropriate

submit evidence

hours

expended

in

the

in support of those hours

Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).

documentation

requested

awa~d.

is

Hensley,

inadequate,

the

court

may

reduce

the

461 U.S. at 433-34.

The Commissioner does not dispute plaintiff's counsel's hours
worked and hourly rate, and having carefully reviewed plaintiff's
application,

I

find them reasonable.

Additionally,

plaintiff's

counsel correctly indicates that time spent preparing the reply to
5 - ORDER FOR EAJA FEES

the

fee

application

Conunissioner,

I.N.S.

is
v.

properly

Jean,

awarded

496 U.S.

154

under
(1990).

the

EAJA.

The court

concludes the time spent preparing the reply is reasonable,

and

thus, that amount is included plaintiff's requested fees.
CONCLUSION

Based

on

the

foregoing,

plaintiff's

Pursuant to EAJA (#22) is GRANTED.
fees in the amount of $5,634.03.

Application

for

Fees

Plaintiff is awarded attorney

The attorney fees will be paid to

plaintiff's attorney, dependent upon verification that plaintiff
has no debt that qualifies for offset against the awarded fees,
pursuant to the Treasury Offset Program. See Astrue v. Ratliff, 560
U.S. 586 (2010).

If plaintiff has no such debt, the check shall be

made out to plaintiff's attorney and mailed to:
P.O. Box 14490, Portland, OR 97293.

Merrill Schneider,

If plaintiff has a debt, then

the check for any remaining funds after offset shall be made out to
plaintiff

and

mailed

to

plaintiff's

attorney's

office

at

the

address stated above.
IT IS SO ORDERED.
DATED this

t

day of JANUARY, 2015.

Malcolm F. Marsh
United States District Judge

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