Moore v. Commissioner Social Security Administration

Filing 26

ORDER ON EAJA ATTORNEY'S FEES. Signed on 12/12/2013 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
6:12-cv-01190-MA

MARTEN WILLIAM MOORE,

ORDER ON EAJA
ATTORNEY'S FEES

Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge

Plaintiff seeks an award of attorney's fees in the amount of
$5,203.95 under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§

2412 (d) (1) (A).

Because I find the position of the Commissioner

was not substantially justified, plaintiff's application for fees
is granted with a small reduction in the fee award.
BACKGROUND

Plaintiff protectively filed'his applications for disability
benefits on August 25,

2008,

disease in back, diabetes."

alleging disability due to ft[d]isc

Tr. 159.

initially and upon reconsideration..
Administrative Law Judge
1 - ORDER

(ALJ)

His applications were denied
A hearing was held before an

on December 15, 2010.

On January

10,

the

2011,

application.

ALJ

issued

a

decision

denying

plaintiff's

After the Appeals Council denied review, plaintiff

timely appealed.
Plaintiff argued that the ALJ properly rejected the opinion of
Dr. Daugherty, plaintiff's treating physician.

I concluded that

the ALJ's reasons for rejecting Dr. Daugherty's opinion were not
specific and legitimate reasons supported by substantial evidence,
and accordingly remanded to the Commissioner for reconsideration of
Dr. Daugherty's opinion.
Plaintiff,

as the prevailing party,

subsequently filed the

present application (#22) for attorney's fees under the EAJA.
Commissioner opposes the award of fees,

The

arguing solely that her

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

Substantial Justification

Under the EAJA,

a prevailing party is entitled to recover

attorney's fees ftunless the court finds that the position of the
United

States

was

substantially

justified

circumstances make an award unjust."

28 U.S.C.

or
§

that

special

2412(d) (1) (A).

ftThe 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
2 - ORDER

to a degree that could satisfy a reasonable person.
487 U.S.

Underwood,

563-66

552,

(1988);

Pierce v.

Bay Area Peace Navy v.
A position is

United States, 914 F.2d 1224, 1230 {9th Cir. 1990).

substantially justified if it has a reasonable basis in law and
Pierce, 487 U.S. at 565; Hardisty v. Astrue, 592 F.3d 1072,

fact.

, 131 S.Ct. 2443

U.S.

1079 (9th Cir. 2010), cert. denied,
(2011).

The question is not whether the government's position as to
the

merits

of plaintiff's

justified.n
Rather,
decision

the
to

disability

claim was

"substantially

Shafer v. Astrue, 518 F. 3d 1067, 1071 (9th Cir. 2008).
question

relevant
defend

the

substantially justified.

is

whether

procedural
Id.

Commissioner's

the

errors

on

appeal

was

The government bears the burden of

demonstrating substantial justification.

Kali v. Bowen, 854 F.2d

329, 332 (9th Cir. 1988).
The Commissioner's argument that the ALJ cited specific and
legitimate reasons for rejecting Dr. Daugherty's opinion wa·s not
substantially justified.

Although I concluded that portions of Dr.

Daugherty's opinion were consistent with the RFC,

and that Dr.

Daugherty's opinion that plaintiff could only occasionally lift ten
pounds was undermined by some of plaintiff's own statements,

I

found that the ALJ's reasons for rejecting Dr. Daugherty's opinion
were not relevant to his opinion that plaintiff would have to rest
for between 20 and 30 minutes, three to four times per day.
3 - ORDER

Dr.

Daugherty's opined resting limitation is an important
not

statements that

Daugherty's opinion uncritically relied on

Dr.

accounted for

in the RFC.

The ALJ' s

observation and was

plaintiff's unreliable self-reporting, did not explain the evidence
it

relied upon,

and was undermined by the lack of significant

clinical and laboratory abnormalities were flatly incorrect.

Dr.

Daugherty specifically cited imaging from the medical record that
revealed significant back abnormalities.

Tr. 367, 373, 403.

It is

clear from Dr. Daugherty's opinion that this imaging was part of
what

informed his opinion,

which was

acceptance of plaintiff's allegations.

not

simply an uncritical

Thus,

the ALJ's reasons

were neither relevant to Dr. Daugherty's resting limitation, nor
specific or legitimate reasons

to disbelieve his

opinion as a

whole.
Defendant continues to argue that the opinions of examining
physicians DeWayde Perry, M.D., and reviewing physician M. Desai
constitute

specific

Daugherty's

opinion.

reasons.

First,

and
This

legitimate
argument

reasons
remains

to

reject

meritless

for

Dr.
two

the ALJ did not cite inconsistency between Dr.

Daugherty's opinion and the opinions of Drs. Perry and Desai as a
reason to reject Dr.

Daugherty's opinion.

Tr.

17.

Second,

the

opinion of a treating physician is generally given greater weight
than those of examining or reviewing physicians.
81 F.3d 821, 830 (9th Cir. 1995).
4 - ORDER

Lester v. Chater,

Thus, the simple fact that the

ALJ credited examining or reviewing opinions that were inconsistent
with that of a treating physician is not a specific and legitimate
reason to discredit the treating physician.

To hold otherwise

would be contrary to settled Ninth Circuit caselaw regarding the
weight to be given to treating physicians' opinions.
Finally,

defendant

that

argues

legitimate reasons to reject Dr.

the

ALJ gave

specific and

Daugherty's opinion because the

ALJ summarized the facts and evidence, stated his interpretation
thereof, and made findings.

As discussed above, however, the ALJ's

interpretation of Dr. Daugherty's opinion was largely unreasonable.
Defendant's position in defending the rejection of Dr. Daugherty's
opinion was not substantially justified.
II.

EAJA Award

An award of attorney's 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.

Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983); Moreno v. City of Sacramento,
534 F. 3d 1106,

1111

(9th Cir.

The starting point for a

2008).

reasonable fee is the number of hours expended multiplied by a
reasonable hourly rate.
154 F.3d 986,
burden

of

988

(9th Cir.

documenting

litigation and must
worked.

Hensley, 461 U.$. at 433; Atkins v. Apfel,

the

submit

1998).

The fee applicant bears the

appropriate
evidence

in

hours

expended

support

in

the

of those hours

Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).

5 - ORDER

Where

documentation

requested award.

is

inadequate,

the

court

may

reduce

the

Hensley, 461 U.S. at 433-34.

The Commissioner does not dispute plaintiff's counsel's hours
worked and hourly rate, and I find them reasonable with one small
adjustment.
motions

for

I deduct the 0.45 hours billed in 2013 for plaintiff's
extension

of

time

necessitated

by

the

press

of

counsel's business.'
CONCLUSION

IT IS ORDERED that attorney's fees in the amount of $5,120.23
shall be awarded to plaintiff pursuant to the EAJA.
fees

will

be

paid

to

plaintiff's

attorney,

The attorney's
dependent

upon

verification that plaintiff has no debt that qualifies for offset
against the awarded fees, pursuant to the Treasury Offset Program.
See Astrue v. Ratliff, 560 U.S. 586 (2010).

If plaintiff has no

such debt, the check shall be made out to plaintiff's attorney and
mailed to plaintiff's attorney's office.
IT IS SO ORDERED.
DATED this

/~ day of December, 2013.

Malcolm F. Marsh
United States District Judge
1

Because a portion was spent conducting a review of the
record, the entry dated 2/11/13 is only reduced by 0.15 hours.

6 - ORDER