Kipps v. Commissioner Social Security Administration

Filing 24

ORDER ON EAJA ATTORNEY'S FEES. For the reasons stated above, plaintiff's Application for Fees Pursuant to EAJA (#21), is GRANTED. Plaintiff is awarded $5,004.80 under the EAJA, subject to any offsets allowed under the Treasury Offset Program as discussed in Astrue v. Ratliif, ___U.S.___, 130 S. Ct. 2521 (2010). If there are no such offsets, the check shall be made out to the plaintiff's attorney and mailed to plaintiff's attorney's office. IT IS SO ORDERED. Signed on 03/05/2013 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
6:12-cv-00043 -MA

COLETTE D. KIPPS,

ORDER ON EAJA
ATTORNEY'S FEES

Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge
In this proceeding,

plaintiff seeks an award of attorney's

fees in the amount of $5,004.80 under the Equal Access to Justice
Act

(EAJA),

position

of

28 U.S.C.
the

§

2412(d)(1)(A ).

Commissioner was

not

Because I find that the
substantially

justified,

plaintiff's application for fees is granted.
BACKGROUND

On October 23, 2008, plaintiff protectively filed applications
for DIB and SSI, alleging disability due to arthritis and mental
impairments

beginning

June

15,

2008.

On

July

11,

2011,

an

Administrativ e Law Judge (ALJ) issued a decision finding plaintiff

1 - ORDER ON EAJA ATTORNEY'S FEES

not disabled within the meaning of the Act.

As relevant here, the

ALJ

was

found

that

determinable

plaintiff's

impairment

at

fibromyalgia
Step Two.

On

not

a

September

medically
20,

2011,

plaintiff submitted two new medical opinions to the Appeals Council
from treating physician Martin Smart, M.D., including one that the
parties agree formally diagnosed fibromyalgia for the first time.
Nonetheless,

the

Appeals

Council

denied

review,

and plaintiff

sought review of the ALJ's decision in this court.
The Commissioner argued that any error in failing to include
plaintiff's fibromyalgia at Step Two was harmless because the ALJ
considered the same symptoms in the RFC by including plaintiff's
generalized osteoarthritis.

Finding that I could not conclude that

the plaintiff's alleged fibromyalgia limitations were the same as
those associated with generalized osteoarthritis, I remanded to the
Commissioner

for

consideration

of

the

late-filed opinions

and

inclusion of fibromyalgia as a medically determinable impairment at
Step Two.
Plaintiff,

as the prevailing party,

subsequently filed the

present application (#21) for attorney's fees under the EAJA.
Commissioner opposes the award of fees,

The

arguing solely that its

position was substantially justified, and therefore, plaintiff is
not entitled to fees under the EAJA.

Ill
Ill
2 - ORDER ON EAJA ATTORNEY'S FEES

DISCUSSION
Substantial Justification

I.

Under the EAJA,

a prevailing party is entitled to recover

attorneys fees "unless the court finds that the position of the
United

was

States

justified

substantially

circumstances make an award unjust."

28 U.S.C.

§

special

that

or

2412(d)(1)(A).

"The test for whether the government is substantially justified is
one of reasonableness."
F. 3d 613,

618

Gonzales v.

(9th Cir. 2005)

Free Speech Coalition,

(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.
487 U.S.

Underwood,

552,

562-63

(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), cert. denied,

U.S.

, 131 S.Ct. 2443 (2011); Lewis v. Barnhart, 281 F.3d 1081, 1083
(9th Cir.

2002).

position as

The question is not whether the government's

to the merits of plaintiff's disability claim was

"substantially justified."

Shafer v. Astrue, 518 F.3d 1067, 1071

Rather,

the relevant question is whether the

(9th Cir.

2008).

Commissioner's decision to defend the procedural errors on appeal
was substantially justified.

Id.

3- ORDER ON EAJA ATTORNEY'S FEES

The government bears the burden

of demonstratin g substantial justification .

Kali v.

Bowen,

854

F.2d 329, 332 (9th Cir. 1988).
The Commissioner 's regulations plainly permit plaintiff to
submit evidence to the Appeals Council after an ALJ has issued a
20 C.F.R.

decision.

§

404.970(b);

Brewes v.

Comm'r Soc.

Sec.

Here, the Appeals

Admin, 682 F. 3d 1157, 1162-63 (9th Cir. 2012).

Council considered the evidence, but concluded the information did
not provide a basis for changing the ALJ's decision.

The new

evidence is part of the administrativ e record which I reviewed on
appeal.

As

I

discussed in my opinion,

because the late-filed

evidence contained a diagnosis of fibromyalgia,

I concluded the

Commissioner erred in not considering that evidence and including
fibromyalgia as a medically determinable impairment at Step Two and
in the rest of the sequential analysis.
The Commissioner 's litigating position was that this error was
harmless
functional

because

the

ALJ

considered

the

same

symptoms

and

limitations in the RFC by incorporating plaintiff's

generalized osteoarthrit is, citing Lewis v. Astrue, 498 F.3d 909,
911

(9th Cir.

2007).

This case is plainly distinguisha ble from

Lewis, however.
As I discussed, while Dr. Smart opined that plaintiff had some
areas of the body where she experienced pain from both fibromyalgia
and osteoarthrit is, there were also symptoms that appeared unique
to each condition.

Even where the alleged pain shared common areas

4 -ORDER ON EAJA ATTORNEY'S FEES

of the body,

I could not conclusively determine whether the pain

described in the osteoarthritis diagnosis was the same as that in
the fibromyalgia diagnosis.
could

not

conclude

that

Thus,
the

ALJ

unlike the court in Lewis,
accounted

for

I

plaintiff's

fibromyalgia symptoms in the RFC by incorporating her generalized
osteoarthritis symptoms.

Therefore, unlike in Lewis, the omission

of plaintiff's fibromyalgia at Step Two was not harmless.
Because the distinction between this case and Lewis is clear,
conclude

I

the

Commissioner's

position

was

not

substantially

justified.
II.

EAJA Award
The Commissioner does not dispute plaintiff's counsel's hours

worked and hourly rate, and I find them reasonable.
plaintiff is awarded $5,004.80.

Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
5

~

ORDER ON EAJA ATTORNEY'S FEES

Accordingly,

CONCLUSION

For the reasons stated above, plaintiff's Application for Fees
Pursuant to EAJA (#21), is GRANTED.

Plaintiff is awarded $5,004.80

under the EAJA, subject to any offsets allowed under the Treasury
Offset Program as discussed in Astrue v. Ratliff,
S. Ct. 2521 (2010).
be made out

u.s.

'

130

If there are no such offsets, the check shall

to plaintiff's

attorney and mailed to plaintiff's

attorney's office.
IT IS SO ORDERED.
DATED this

day of

~~

&::lsrfH~F~,

2013.

Malcolm F. Marsh
United States District Judge

6- ORDER ON EAJA ATTORNEY'S FEES