Boulet v. Commissioner, Social Security Administration

Filing 41

Opinion and Opinion - The Plaintiffs request for attorney fees is DENIED. Signed on 7/30/2014 by Judge Robert E. Jones.(Re: Application for Fees Pursuant to EAJA 37 , See 4-page Opinion and Order) (ecp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ASHLEY J. BOULET,
Plaintiff,
v.
CAROLYN W.COLVIN,
Acting Commissioner of Social Security,
Defendant.

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6:13-CV-00188-JO

OPINION AND ORDER

JONES, J.,
Plaintiff Ashley J. Boulet filed a motion for attorney fees in the amount of $10,128.40
pursuant to the Equal Access to Justice Act (EAJA). 28 U.S.C. § 2412. Boulet'smotionfor attorney
fees is DENIED.

PRIOR PROCEEDINGS
In the underlying action, Boulet appealed the Commissioner's decision te1minating her
disability benefits under Titles II and XVI of the Social Security Act. In that case, this Court
reversed and remanded for the limited purpose of supplementing the record. Specifically, I found
that the Commissioner must obtain the comparison point decision (CPD) and medical evidence from
prior proceedings, which were summarized but not made part of the record for judicial review. In
the opinion, this Court rejected all ofBoulet's other challenges and found there was no error in the
ALJ' s credibility determination, the ALJ properly evalutated the relevant medical opinions and lay
witness statements, and the ALJ was not biased.

1 - OPINION AND ORDER

Boulet now requests attorney fees in the amount of$10,128.40 for 55.8 hours of attorney
work on the appeal.

LEGAL STANDARDS
Under the Equal Access to Justice Act (EAJA), courts shall grant reasonable attorneys
fees to a prevailing plaintiff against the government, unless the government's position was
"substantially justified" or special circumstances make an award unjust. 28 U.S.C. §
2414(d)(l)(A). In Social Security cases, the government bears the burden to show that their
position was substantially justified at the institutional level as well as on appeal. Love v. Reilly,
924 F.2d 1492, 1495 (9th Cir. 1991); lvfeier v. Colvin, 727 F.3d 867, 870-72 (9th Cir. 2013).
A substantially justified position is one that a reasonable person would think is conect; it
has a reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988). Even if
the reviewing court remands for futther proceedings, the government's position may be
substantially justified. See Hardisty v. Astrue, 592 F.3d 1072, 1076-80 (9th Cir. 2010).
However, it is a "decidedly unusual" case where the government is substantially justified even
though the agency's decision was reversed because reasonable, substantial, and probative
evidence was lacking in the record. Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005).

DISCUSSION
In this "unusual" case, the Commissioner was substantially justified in defending the

ALJ's findings before the district court. In Campbell v. Astrue, the Ninth Circuit found the
government's position substantially justified where the Commissioner defended the ALJ' s
attempt to extrapolate the claimant's disability in June 30, 1996 by looking at medical records
from 1989 and 2000. Campbell v. Astrue, 736 F.3d 867 (9th Cir. 2013). The cou11 found it was

2 - OPINION AND ORDER

reasonable for the Commissioner to defend the ALJ' s decision to extrapolate from medical
records to make a decision about a past condition; this was an "unusual case" where attorney fees
should not be awarded under the EAJA. Campbell, 736 F.3d at 869.
Here, the ALJ did not include the CPD and medical evidence from prior proceedings in
the record. The Commissioner argued medical improvement could be reasonably inferred if the
claimant was disabled at the time of the CPD and current evidence shows she is not now
disabled. In addition, the basis of the CPD was evident based on summaries and references in the
record. Thus, the Commissioner argued it was not necessary for the CPD and medical evidence
to be entered into the record.
I remanded the case because other circuits have interpreted the regulatory scheme to
require the ALJ to find medical improvement before considering whether cunent evidence
establishes disability. However, the Commissioner's position has not been foreclosed by the
Ninth Circuit and it is a reasonable and practical interpretation of the regulations. Although other
circuits have ruled that evidence used to determine the initial disability must be included in the
record to te1minate benefits, the Ninth Circuit has not ruled on this issue. See Veino v. Barnhart,
312 F.3d 578, 587 (2d Cir. 2002); Byron v. Heckler, 742 F.2d 1232, 1236 (10th Cir. 1984). The
Commissioner is generally entitled to deference when interpreting its own regulations, unless the
interpretation is plainly enoneous or inconsistent with the regulation. See e.g., Auer v. Robbins,
519 U.S. 452, 457 (1997); HHS v. Chafer, 163 F.3d 1129 (9th Cir. 1998). As in Campbell v.

Astrue, it was reasonable for the government to argue that inferences could be drawn from the
existing record about a prior condition. Finally, I note that Boulet's additional arguments in her
appeal did not have merit, so it is unlikely she will ultimately prevail. Thus, I find the
government's position was substantially justified.
3 - OPINION AND ORDER

CONCLUSION

For the foregoing reasons, the Plaintiffs request for attorney fees is DENIED.
DATED this

·5<f dayofJuly,2014.

4 - OPINION AND ORDER