White v. Commissioner

Filing 31

ORDER: Granting Application for Fees Pursuant to EAJA 29 in the amount of $4,340.45 for fees and $18.21 expenses. Ordered by Magistrate Judge Thomas M. Coffin. (plb)

FILED '10 OCT 0610:39 USDC'OR£

UNITED STATES DISTRICT COURT
F O R THE DISTRICT OF OREGON
E U G E N E DIVISION
ELAINE M. WHITE, Plaintiff,
I

09-CV -3038-TC

v.
MICHAEL J. ASTRUE, Commissioner,of Social Security, Defendant. COFFIN, Magistrate Judge:

ORDER

Plaintiff brought this action for judicial review of a decision of the Commissioner of Social Security denying her application for application ofDisability Insurance Benefits. This court reversed the Commissioner's decision and remanded the matter for further proceedings. Presently before the court is plaintiffs request (#29) for award of attorney fees and expenses pursuant to the Equal Access to Justice Act (EAJA) in the amount of $4,340.45 for fees and $18.21 for expenses . . The Commissioner does not contest the number ofhours spent by plaintiffs counselor the hourly

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rate requested. However, the Commissioner contends that his position in the underlying matter was substantially justified and, as such, that plaintiff is not entitled to fees. Legal Background The EA1A allows an award of attorney fees only if the court finds that the government was not "substantially justified" or if "special circumstances make an award unjust." 28 U.S.C. section 2412(d)(1 )(A). Substantial justification in this context means justification to a degree that could satisfy a reasonable person. AI-Harbi v. Immigration and Naturalization Service, 284 F.3d 1080 (9th Cir. 2002) (citations omitted, quotations omitted). The government's position is substantially justified if it has a reasonable basis in law and. fact. Thangaraja v. Gonzalez, 428 F.3d 870, 874 (9 th Cir.2005). A holding that an agency decision was unsupportedby substantial evidence is a strong indication that the government's position was not substantially justified. Id. And it is only the decidedly unusual case in which there is substantial justification even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record. Id. The government bears the burden of demonstrating substantial justification. Id. Discussion The plaintiff in the present matter was examined by Dr. O'Connell who noted several significant workplace limitations. The ALl largely rejected Dr. O'Connell's report, but the ALl did not do so by relying on a treating physician or another examining physician and the ALl acknowledged that the DDS' earlier determination of no severe mental impairment was made without the benefit of Dr. O'Connell's report. This court reversed and remanded for the record to be more fully developed with the ALl directed to contact Dr. 0' Connell. This court noted that the ALl's duty to develop the record was Page 2 - ORDER

triggered due to ambiguous evidence and the fact the record was inadequate to allow for proper evaluation of the evidence. This court also found that the ALJ did not provide sufficient reasons to reject O'Connell's statements as it was unclear if the ALJ's findings were supported by substantial evidence in the record. As stated in this court's opinion, the Commissioner had noted in his opposition papers that O'Connell's report was vague and not explicit. Based on the foregoing, the· Commissioner has not met its burden of demonstrating substantial justification as the Commissioner's position did not have a reasonable basis in fact and the agency decision was determined to be unsupported by substantial evidence. See, Thangaraj~ 428 F.3d at 874.

Conclusion

Plaintiffs request (#29) for award of attorney fees and expenses pursuant to the Equal Access to Justice Act is allowed in the amount of $4,340.45 for fees and $18.21 for expenses.

DATED this

~ day of October, 2010.

7

.

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