Clowdus v. Commissioner Social Security Administration

Filing 21

ORDER: Denying Application for Fees Pursuant to EAJA 17 . For these reasons, the Court DENIES Plaintiff's Motion (# 17 ) for Fees Under the Equal Access to Justice Act. IT IS SO ORDERED. Signed on 1/22/18 by Judge Anna J. Brown. (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KIMBERLY CLOWDUS,
Plaintiff,

3:16-cv-01812-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

ROBYN M. REBERS
P.O. Box 3530
Wilsonville, OR 97070
[phone]
Attorneys for Plaintiff

1

On January 23, 2017, Nancy A. Berryhill was appointed
Acting Commissioner of Social Security and pursuant to Federal
Rule of Civil Procedure 25(d) is substituted as Defendant in this
action.
1 - OPINION AND ORDER

BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
MICHAEL W. PILE
Acting Regional Chief Counsel
MARTHA A. BODEN
Social Security Administration
Office of the General Counsel
701 Fifth Avenue
Suite 2900 MS 221A
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant

BROWN, Judge.
This matter comes before the Court on Plaintiff’s Motion
(#17) for Fees Under the Equal Access to Justice Act in which she
seeks an award of attorneys’ fees pursuant to 28 U.S.C. § 2412.
For the reasons that follow, the Court DENIES Plaintiff’s
request for EAJA fees.

BACKGROUND
Plaintiff protectively filed her application for Disability
Insurance Benefits (DIB) on August 19, 2012, and her application
for Supplemental Security Income (SSI) on October 30, 2012.
Plaintiff’s applications were denied initially and on
reconsideration.

An Administrative Law Judge (ALJ) held a

2 - OPINION AND ORDER

hearing on November 21, 2014.
The ALJ issued a decision on March 26, 2015, in which he
found Plaintiff is not entitled to benefits.

After the ALJ

issued his decision Plaintiff submitted additional medical
records to the Appeals Council.

On July 25, 2016, however, the

Appeals Council concluded those records did not provide a basis
to modify the ALJ’s decision and denied Plaintiff’s request for
review.

The ALJ’s decision, therefore, became the final decision

of the Commissioner.
Plaintiff appealed the decision of the Commissioner to this
Court.

This Court reviewed the Commissioner’s denial of

benefits, and, after reviewing the record, the Court issued its
Opinion and Order on August 17, 2017, reversing the decision of
the Commissioner and remanding the matter pursuant to sentence
four of 42 U.S.C. § 405(g) for further administrative
proceedings.
On November 7, 2017, Plaintiff filed this Motion for EAJA
Fees.

Plaintiff seeks an award of attorneys' fees in the amount

of $5,245.90.

STANDARDS
Under EAJA the Court may award attorneys' fees and costs to
a plaintiff's attorney in an action against the United States or
any agency or official of the United States if (1) the plaintiff

3 - OPINION AND ORDER

is the prevailing party, (2) the Commissioner has not met her
burden to show that her positions during the case were
substantially justified or that special circumstances make such
an award unjust, and (3) the requested attorneys' fees and costs
are reasonable.

28 U.S.C. § 2412(d)(1)(A).

See also Perez-

Arellano v. Smith, 279 F.3d 791, 792 (9th Cir. 2002).
A "prevailing party" is one who has been awarded relief by
the court on the merits of at least some of his claims.
v. Hampton, 446 U.S. 754, 758 (1980).

Hanrahan

"Enforceable judgments and

court-ordered consent decrees create 'the material alteration of
the legal relationship of the parties' necessary to permit an
award of attorney's fees."

Buckhannon Bd. and Care Home, Inc. v.

W. Va. Dep't of Health and Human Res., 532 U.S. 598, 604
(2001)(internal citation omitted).
A prevailing plaintiff is not entitled to attorneys' fees
under EAJA when the Commissioner's positions were substantially
justified.
2002).

Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.

The Commissioner's positions are substantially justified

if they are reasonably based both in law and in fact.

Id.

(citing Pierce v. Underwood, 487 US. 552, 566 n.2 (1988)).

The

Commissioner's failure to prevail on the merits of his positions
does not raise a presumption of unreasonableness.

U.S. v.

Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002)(citing Kali v. Bowen,
854 F.2d 329, 332 (9th Cir. 1988)).
4 - OPINION AND ORDER

When the Commissioner opposes a claimant's fee request, she
bears the burden to establish her positions at each stage of the
proceeding were "substantially justified."
F.3d 1051, 1053 (9th Cir. 1998).

Corbin v. Apfel, 149

See also U.S. v. Real Property

at 2659 Roundhill Drive, Alamo, Cal., 283 F.3d 1146, 1151 (9th
Cir. 2002).

To prevail, therefore, the Commissioner must

establish the positions taken by the Commissioner in opposition
to the claimant's efforts to obtain Social Security benefits in
both the proceedings before this Court and the underlying
administrative action were substantially justified.

See Lewis,

281 F.3d at 1085-86.
The Commissioner's position “‘must be justified in substance
or in the main,’ - that is, justified to a degree that could
satisfy a reasonable person.”

Gonzales, 408 F.3d at 618 (citing

Pierce v. Underwood, 487 U.S. 552, 565 (1988)).

“Put another

way, substantially justified means there is a dispute over
which ‘reasonable minds could differ.’”

Gonzales, 408 F.3d at

618 (citing League of Women Voters of Cal. v. FCC, 798 F.2d 1255,
1257 (9th Cir. 1986)).

DISCUSSION
Plaintiff asserts she is entitled to attorneys’ fees because
the Commissioner’s position was not substantially justified.
In its Opinion and Order issued August 17, 2017, this Court
5 - OPINION AND ORDER

concluded the ALJ did not err when he found Plaintiff’s foot
conditions and hypertension are nonsevere.

The Court also

concluded the ALJ did not err when he found Plaintiff’s
fibromyalgia is nonsevere and/or that such an error would be
harmless because the ALJ considered Plaintiff’s “decades” of
chronic pain when he assessed Plaintiff’s RFC.

In addition, the

Court considered the records Plaintiff submitted for the first
time to the Appeals Council and concluded those records did not
reflect Plaintiff’s foot conditions were expected to affect her
for a “continuous period of not less than 12 months.”

The Court

also noted the new medical records reflected Plaintiff’s
hypertension was treated conservatively and that Plaintiff rarely
complained of symptoms related to her hypertension.

The Court,

therefore, concluded the new records did not undermine the ALJ’s
opinion that Plaintiff’s hypertension is nonsevere.
The Court also noted the new records contained only one
reference to fibromyalgia (Plaintiff “has [had] chronic pain for
decades in a pattern [consistent with] fibromyalgia”), but that
record did not contain a formal diagnosis of fibromyalgia or any
indication that Plaintiff’s symptoms met the diagnostic criteria
for fibromyalgia.

The Court, therefore, concluded the new

records did not undermine the ALJ’s opinion that fibromyalgia was
not a medically determinable impairment.

Nevertheless, the Court

concluded the ALJ erred when he found Plaintiff had the Residual

6 - OPINION AND ORDER

Function Capacity (RFC) to lift and to carry at a medium
exertional level because “the medical record clearly reflects
Plaintiff has some degree of chronic pain that would preclude her
from performing full-time work at the medium-exertion level at
least with respect to lifting and carrying.”

Opin. and Order at

16.
As noted, Plaintiff asserts she is entitled to attorneys’
fees because the Commissioner’s position was not substantially
justified.

In Decker v. Berryhill the Ninth Circuit addressed

the question of substantial justification in the EAJA context
under circumstances similar to those in this case.

856 F.3d 659

(9th Cir. 2017).
In Decker the plaintiff submitted new evidence to the
Appeals Council after the ALJ issued his decision.

Specifically,

the plaintiff submitted the results of blood tests that were not
available at the time the ALJ issued his decision.

Id. at 662.

The plaintiff, however, did not submit a doctor’s opinion or
other evidence interpreting the results.

The Appeals Council

considered the new evidence but declined to review the denial of
benefits.

The plaintiff filed an action in district court

challenging the Commissioner’s denial of benefits and the
district court remanded the matter for further proceedings in
light of the new evidence submitted to the Appeals Council.

The

district court noted “there is at least a possibility that [the

7 - OPINION AND ORDER

plaintiff’s doctor] could interpret these results in a way that
warrants departure from the ALJ’s decision.”

Id. at 663.

The

plaintiff then moved for attorneys’ fees pursuant to EAJA and the
government objected on the ground that its position was
substantially justified.

The district court denied the

plaintiff’s motion for attorneys’ fees.

The plaintiff appealed,

and the Ninth Circuit noted the issue presented was “whether the
new evidence [the plaintiff] submitted to the Appeals Council
required remand to the ALJ for consideration of how the new data
might impact [the plaintiff’s] disability determination.”
664.

Id. at

The Ninth Circuit concluded it did not.
It was not so obvious, though, whether [the
plaintiff’s] case required remand. [The
plaintiff’s] new evidence consisted of two pages
of blood test results, without further
explanation. A medical laboratory report that
identifies certain test results as “abnormal” when
compared to stated reference ranges is not very
meaningful by itself. A report of one or more
“abnormal” test results might be evidence that
supports a finding of long-term disability, but it
does not on its face compel it. . . . [T]he
district court explained the decision to remand
the merits case to the agency by observing that
there was “a possibility” that the results could
be interpreted by [the plaintiff’s] doctor to
support a result different from that reached by
the ALJ. That result was not inevitable, however.

Id.

The Ninth Circuit concluded the plaintiff’s “new evidence,

though sufficient in the end to persuade the district court to
remand the case, did not make that the only reasonable result.
We cannot say, in that circumstance, that the district court

8 - OPINION AND ORDER

abused its discretion in reaching the conclusion that the
Commissioner's position in opposing remand was substantially
justified.”

Id.

Similarly, here the Court found Plaintiff’s new evidence was
sufficient to remand the case for re-examination of Plaintiff’s
RFC, but that result was neither inevitable nor the only
reasonable result.

The Court concludes, therefore, the

government’s position was substantially justified.
Accordingly, the Court denies Plaintiff’s Motion for Fees.

CONCLUSION
For these reasons, the Court DENIES Plaintiff’s Motion (#17)
for Fees Under the Equal Access to Justice Act.
IT IS SO ORDERED.
DATED this 22nd day of January, 2018.

/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge

9 - OPINION AND ORDER