Schwartz v. Commissioner of Social Security Administration
Filing
43
OPINION & ORDER: Plaintiff's application for an award of EAJA fees 35 in the amount of $6,918.97 is granted. See 4-page opinion & order attached. Signed on 1/28/2014 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JAY ERIC SCHWARTZ
No. 6:12-cv-00774-HZ
Plaintiff,
OPINION & ORDER
v.
CAROLYN COLVIN, Commissioner,
Social Security Administration,
Defendant.
Tim D. Wilborn
Wilborn Law Office, P.C.
P.O. Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
Adrian L. Brown
U.S. Attorney’s Office
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204
1 - OPINION & ORDER
Kathy Reif
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98105-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Jay Schwartz brought this action seeking judicial review of the Commissioner’s
final decision to deny disability insurance benefits (DIB). In an August 29, 2013 Opinion &
Order, I reversed the Commissioner’s decision, concluding that the Administrative Law Judge
(ALJ) erred by failing to consider the entirety of Dr. Rory Richardson’s opinion and Tonie
Tartaglia’s testimony. I ordered that the case be reversed and remanded for an award of benefits.
Judgment was entered on August 29, 2013.
Plaintiff now seeks an award of fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412 (EAJA). Defendant opposes the motion, arguing that the Commissioner’s
decision was substantially justified. For the reasons explained below, I disagree with Defendant
and grant Plaintiff’s application for fees pursuant to EAJA [35].
STANDARD
EAJA requires an award of attorney’s fees to prevailing parties in civil actions against
the United States unless the position of the United States was substantially justified. 28 U.S.C. §
2412(d)(1)(A). There is no dispute that plaintiff was the prevailing party. Defendant makes no
objection to the calculation of the amount of fees requested. The only issue is whether the
Commissioner’s position was substantially justified.
The burden is on the Commissioner to show that his position was substantially justified.
2 - OPINION & ORDER
Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010). Although “Congress did not intend
fee shifting [under EAJA] to be mandatory[,]” “EAJA creates a presumption that fees will be
awarded to prevailing parties.” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). However,
the “government’s failure to prevail does not raise a presumption that its position was not
substantially justified.” Kali v. Bowen, 954 F.2d 329, 332 (9th Cir 1988). To establish that its
position was substantially justified, the government must show that the underlying ALJ decision
had “a reasonable basis both in law and fact.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).
This involves looking to the record of both the underlying government conduct at issue and the
totality of circumstances present before and during litigation. Barry v. Bowen, 825 F.2d 1324,
1330 (9th Cir. 1987).
DISCUSSION
In this case, the ALJ crafted an RFC that did not fully account for the severity of
Plaintiff’s memory impairment. First, “[t]he ALJ erred by not fully incorporating Dr.
Richardson’s opinion.” August 29, 2013 Op. & Order [23], 7. “Even with written instructions
and the ability to take notes on those instructions, with Plaintiff’s severely impaired memory,
Plaintiff would need to constantly be advised or constantly look at his notes to complete tasks.”
Id. Regarding Tartaglia’s testimony, the ALJ did not address her observations that Plaintiff
needed to “have directions repeated to him many times and the need to have someone watching
over him as the task is completed.” Id. at 8.
Defendant argues that its position was substantially justified on these issues because (1)
the ALJ’s interpretation of Dr. Richardson’s report was rational and (2) Tartaglia’s testimony
was not probative because it did not relate to Plaintiff’s ability to work. Def.’s Resp. 3, 4. First,
the error involving Dr. Richardson’s opinion is not an issue of whether the report was interpreted
3 - OPINION & ORDER
rationally. I found that the ALJ did not fully incorporate Dr. Richardson’s report regarding
Plaintiff’s memory impairment. Second, Tartaglia’s testimony regarding Plaintiff’s need to have
directions repeated or guidance with tasks is relevant to Plaintiff’s ability to work. Plaintiff’s
RFC included limitations involving simple instructions, the need to write down those
instructions, and the ability to refer to those instructions. Tartaglia’s testimony was probative
and it was error to reject such testimony without comment. I find that Defendant’s position was
not substantially justified.
CONCLUSION
Based on the foregoing, Plaintiff’s application for an award of EAJA fees [35] in the
amount of $6,918.97 is granted.
IT IS SO ORDERED.
Dated this
day of _____________________, 201__
MARCO A. HERNANDEZ
United States District Judge
4 - OPINION & ORDER
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