Belanger v. Commissioner Social Security Administration
OPINION AND ORDER: Plaintiff's Motion and Memorandum for Award of Fees & Costs Pursuant to the Equal Access to Justice Act 77 is GRANTED IN PART and DENIED IN PART. Because the government's position was substantially justified, plaintiffs' motion for attorney's fees is denied. Plaintiff is, however, entitled to an award of $51.45 in costs pursuant to 28 U.S.C. § 2412(a)(1). Signed on 8/14/2017 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 6:07-cv-01727-AA
OPINION AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Plaintiff Michele Belanger seeks attorney's fees and costs pursuant to the Equal Access
to Justice Act ("EAJA"), 28 U.S.C. § 2412. Defendant, Acting Commissioner of Social Security
Nancy Benyhill, opposes plaintiffs motion for fees on the basis that the government's position
was substantially justified. For the reasons set fotih below, plaintiffs motion for costs is granted
but her motion for fees is denied.
Plaintiff initially applied for Title XVI supplemental security income ("SSI") in 1998. A
long and complicated procedural history followed, involving four administrative hearings, two
Page 1 - OPINION AND ORDER
Appeals Council remands, and a remand directed by this Court. On September 21, 2012, the
ALJ issued a fourth written decision finding plaintiff not disabled.
On appeal, I found no
harmful error 1 and affirmed. Belanger v. Colvin, 2014 WL 1400205, *11 (D. Or. Apr. 7, 2014).
On March 29, 2017, the Ninth Circuit reversed and remanded for further proceedings. Belanger
v. Berryhill, -F. App'x - , 2017 WL 1164401 (9th Cir. Mar. 29, 2017) (unpublished).
All three judges on the appellate panel agreed that the ALJ hatmfully e!Ted with respect
to the opinion of vocational expe1t David Hitt. Id. at *3. Judges Fisher and Friedland :ftuther
held that the ALJ had e!Toneously rejected the opinions of two of plaintiffs treating physicians.
Id. at *2-*3. Concurring in the judgment, Judge O'Scannlain patted ways with the majority; he
would have held that the ALJ properly discounted the treating physicians' opinions. Id. at *4
(O'Scannlain, J., concurring pmt and concurring in the judgment).
STANDARD OF REVIEW
A pmty that prevails against the United States government in a civil action is entitled,
under certain circumstances, to an award of attorney's fees under the EAJA. 28 U.S.C. § 2412.
In pe1tinent patt, the EAJA provides:
Except as otherwise specifically provided by statute, a cou1t shall award to a
prevailing patty other than the United States fees and other expenses, in addition
to any costs awarded pursuant to subsection (a), incu11·ed by that party in any civil
action (other than cases sounding in tort), including proceeding for judicial review
of agency action, brought by or against the United States in any court having
jurisdiction of that action, unless the comt finds that the position of the United
States was substantially justified or that special circumstances make an award
28 U.S.C. § 2412(d)(l)(A).
1 In affaming, I found possible e!Tor in the ALJ's failure to individually summarize and
address the testimony of one of plaintiffs ten lay witnesses. Belanger, 2014 WL 1400205 at *4.
I concluded any error was hmmless, however, because the ALJ "provided several clear and
convincing reasons to reject plaintiffs subjective symptom statements" that were "equally
applicable" to the testimony of the lay witness. Id. at *5.
Page 2 - OPINION AND ORDER
Thus, the EAJA establishes a two-part test for determining whether an award of
attorney's fees is appropriate. The court must first asce1tain if the plaintiff was a prevailing
pmty; if so, the court must then evaluate whether the government was substantially justified in its
position and whether special circumstances exist that would make an award of attorney's fees
unjust. Flores v. Shala/a, 49 F.3d 562, 567 (9th Cir. 1995).
When seeking fees under the EAJA, the government has the burden to demonstrate that
its position had "a reasonable basis in both law and fact." Pierce v. Underwood, 487 U.S. 552,
565 (1988). When the agency's decision is not supported by substantial evidence, that is a
"strong indication" the government's position in the underlying agency action was not
substantially justified." Thangaraja v. Gonzalez, 428 F.3d 870, 874 (9th Cir. 2005). It is the
"decidedly unusual case in which there is substantial justification under the EAJA even though
the agency's decision was reversed as lacking in reasonable, substantial and probative evidence
in the record." Id. (citation and quotation marks omitted). However, "this circuit has never
stated that every time this comt reverses and remands the ALJ's decision for lack of substantial
evidence the claimant should be awarded attorney's fees." Campbell v. Colvin, 736 F.3d 867,
869 (9th Cir. 2013) (emphasis in original). In each case, the court must "assess the justification
of the Commissioner's position based on its reasonableness before the [remanding] court made
its decision on the merits." Decker v. Benyhil/, 856 F.3d 659, 664 (9th Cir. 2017) (citations
omitted). Because reasonableness is assessed from the government's perspective at the time it
made its litigation decisions, it is appropriate to "consider the government's success in the
district court as part of the EAJA analysis" when the case is reversed on appeal. Meier v.
Colvin, 727 F.3d 867, 873 (9th Cir. 2013) (emphasis in original).
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It is undisputed that plaintiff was a prevailing party. The only remaining questions are
whether the government's position was substantially justified and whether special circmnstances
would make a fee award in this case uajust. On the particular circumstances presented by this
case, I find the government's position was substantially justified.
Importantly, the single rationale that united the tln·ee-judge panel rested on Dale v.
Colvin, 823 F.3d 941, 945 (9th Cir. 2016). Dale was decided a year after the completion of
briefing in plaintiffs Ninth Circuit appeal and more than two years after the completion of
briefing in plaintiffs appeal to this Court. In Dale, the Ninth Circuit explained that it had not
previously addressed "whether an ALJ may discount the entire medical opinion of an other
source when the ALJ has divided the testimony into distinct patts and only one of those parts is
inconsistent with objective evidence in the record." Id. (emphasis in original). The court went
on to hold that the ALJ could not discount an opinion wholesale in that way. Id. Litigating
plaintiffs appeal before Dale was decided, the government took the then-justified position that a
non-medical source's opinion could be rejected on such grounds. Because Dale expressly settled
an open question in this circuit in an opinion issued years after the goverrunent made its litigation
decisions in this case, I find the goverrunent's position with respect to the vocational expert's
opinion was substantially justified.
With respect to the ALJ's treatment of the two treating physicians' opinions, I also find
the government's position substantially justified. As Judge O'Scannlain explained in dissent, the
majority's identification of el1'or with respect to those two opinions hinged on nuanced questions
of how much deference is owed to an ALJ under the substantial evidence standard and how
clearly an ALJ must connect the decision to discredit a claimant's symptom statements to the
Page 4 - OPINION AND ORDER
decision to discredit a treating physician opinion based largely on those statements.
Belanger, 2017 WL 1164401 at *4 (O'Scannlain, J., concutTing in part and concun"ing in the
judgment). The government persuaded both a district court judge and an appellate coutt judge
that its position regarding the treating physicians' opinions was not only justified, but cotTect.
On the record presented here, that is sufficient to render the government's position substantially
justified for the purposes of the EAJA. Cf Decker, 856 F.3d at 665 (upholding the district
comt's denial of EAJA fees because the plaintiffs evidence, "though sufficient in the end to
persuade the district court to remand the case, did not make that the only reasonable result"). 2
Plaintiffs Motion and Memorandum for Award of Pees & Costs Pursuant to the Equal
Access to Justice Act (doc. 77) is GRANTED IN PART and DENIED IN PART. Because the
government's position was substantially justified, plaintiffs' motion for attorney's fees is denied.
Plaintiff is, however, entitled to an award of $51.45 in costs pursuant to 28 U.S.C. § 2412(a)(l ).
IT IS SO ORDERED.
Ji_ day of August 2017.
United States District Judge
Because I find that the government's position was substantially justified, I need not
address the government's alternative argument that a fee reduction is watTanted because plaintiff
did not provide the actual time one of her attorneys spent on her case.
Page 5 - OPINION AND ORDER
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