Alagoz v. Commissioner of Social Security Administration
Filing
32
OPINION & ORDER: The Commissioner's position is not substantially justified. Accordingly, plaintiff's EAJA application (# 23 ) is granted. Plaintiff is awarded fees in the amount of $5,289.44. Signed on January 23, 2014 by Judge James A. Redden. (eo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LUCY ALAGOZ,
CV. 6:12-cv-00902 RE
Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
REDDEN, Judge:
Plaintiff seeks an award of fees in the amount of $5,289.44
under the Equal Access to Justice Act ("EAJA"), 28 U.S.C.
2412 (d) (1) (A).
§
Because I find that the position of the
Commissioner was not substantially justified, plaintiff's
application (#23) is granted.
Background
Plaintiff alleged disability since May 3, 2007, due to
"arms, hands, back, neck, depression."
Tr. 148.
was denied initially and upon reconsideration.
Her application
After a September
2010 hearing, an ALJ found her not disabled, finding, in part,
that plaintiff's testimony as to the symptoms of her impairments
was not entirely credible.
Plaintiff sought review in this
court, and after reviewing the record, this court reversed the
decision of the Commissioner and remanded this matter for the
calculation and payment of benefits on the basis that the ALJ did
not provide clear and convincing reasons for rejecting the
opinion of the treating physician.
Plaintiff filed this application for fees
(#23).
The
Commissioner asserts that her position was substantially
justified and that no attorney fees should be awarded under the
EAJA.
Standards
Under the EAJA, a prevailing party is entitled to recover
attorneys fees "unless the court finds that the position of the
United States was substantially justified or that special
circumstances make an award unjust."
2 8 U.S. C.
§
2 412 (d) ( 1) (A) .
"The test for whether the government is substantially justified
is one of reasonableness."
408 F.3d 613, 618
Gonzales v. Free Speech Coalition,
(9th Cir. 2005) (internal quotations omitted).
The Commissioner's position need not be justified to a high
degree, but to a degree that could satisfy a reasonable person.
Pierce v. Underwood, 487 U.S. 552, 562-63 (1988); Bay Area Peace
Navy v. United States, 914 F.2d 1224, 1230 (9th Cir. 1990).
A substantially justified position does not necessarily mean
a correct position; instead there may be a dispute over which
reasonable minds could differ.
Gonzales, 408 F.3d at 618.
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),
1832858
(May 16, 2011).
cert. denied, 2011 WL
The government bears the burden of
demonstrating substantial justification.
F.2d 329, 332
(9th Cir. 1988).
Kali v. Bowen, 854
The Commissioner's failure to
prevail on the merits of his positions does not raise a
presumption of unreasonableness.
F.3d 1156, 1162
United States v. Marolf, 277
(9th Cir. 2002) (citing Kali v. Bowen, 854 F.2d
3 2 9 , 3 3 2 ( 9th Ci r . 19 8 8 ) ) .
An award of attorney fees under the EAJA must be reasonable.
28 U.S.C. § 2412 (d) (2) (A).
The court has an independent duty to
review the fee request to determine its reasonableness.
v. Eckerhart, 461 U.S. 424, 433
Hensley
(1983); Moreno v. City of
Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008).
The fee
applicant bears the burden of documenting the appropriate hours
expended in the litigation and must submit evidence in support of
those hours worked.
(9th Cir. 1992).
Gates v. Deukmejian, 987 F.2d 1392, 1397
The party opposing the fee request has the
burden of rebuttal which requires the submission of evidence to
challenge the accuracy and reasonableness of the hours charged.
Id. at 1397-98.
Ill
Ill
Discussion
It is undisputed that plaintiff is the prevailing party.
The Commissioner does not object to the amount of costs or the
requested hourly rate.
She argues that she was substantially
justified in defending the ALJ's decision denying plaintiff's
applications.
A.
Robert Hartog, M.D.
Treating physician Hartog opined in August 2008 that
plaintiff was limited to occasional handling with both hands, and
she would be expected to miss work 3-4 days a month due to
medical issues and limited strength and endurance due to opioid
use.
Opinion & Order at 18-19.
The Commissioner argues that an ALJ may properly reject a
treating physician's assessment if the assessment is "conclusory,
brief, and unsupported by the record as a whole."
However, this
court found Dr. Hartog's opinion supported by multiple objective
medical findings,
including CT scan with disc bulge and facet
osteoarthritis, surgery, fibromyalgia tender points, observation
of demeanor, a positive Tinel's sign in the left hand, multiple
tender points in the hands, and decreased sensation to pinprick
and touch in both hands.
Opinion & Order at 18-19.
This court
found the ALJ erred by rejecting Dr. Hartog's opinion as
inadequately supported, and failed to offer clear and convincing
reasons to reject the uncontradicted opinion of the treating
physician.
This was legal error and the Commissioner's position
was not substantially justified.
Therefore, plaintiff's motion
for fees and costs under the EAJA is granted.
B.
No Fee Reduction for Asserting Unpersuasive Argument
The court found that the ALJ properly found plaintiff less
than fully credible.
Defendant argues that a fee award should
be reduced where a claimant failed to prevail on every contention
raised, citing Hensley v. Eckerhart, 461 U.S. 424
(1983).
In
Hensley the plaintiffs challenged the constitutionality of
treatment and conditions at a state mental hospital and prevailed
on five of six general areas of treatment.
Thereafter, they
sought attorney's fees under the Civil Rights Attorney's Fees
Awards Act of 1976, 42 U.S.C.
§
1988.
The Hensley Court held
that, where the plaintiff failed to prevail on a claim unrelated
to the successful claims, the hours spent on the unsuccessful
claim should be excluded in considering the amount of a
reasonable fee.
Hensley, 461 U.S. at 435.
The Hensley Court
also noted that the extent of a plaintiff's success is a crucial
factor in determining the proper amount of attorney fees awarded.
Id. at 430.
The Commissioner's argument fails because the plaintiff
prevailed on her claim of disability though not on every argument
she asserted in support of that claim.
I I I
I I I
I I I
Conclusion
The Commissioner's position is not substantially justified.
Accordingly, plaintiff's EAJA application (#23) is granted.
Plaintiff is awarded fees in the amount of $5,289.44.
IT IS SO ORDERED.
Dated this
1-1 day of January, 2014.
/
· ...
U~States
District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?