Farley v. Commissioner Social Security Administration

Filing 30

ORDER: Granting Application for Fees Pursuant to EAJA 26 . Plaintiff is awarded fees in the sum of $5,985.22. Signed on 11/21/2016 by Judge Ann L. Aiken. (cw)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

SEAN L. FARLEY,

Case No. 6: 15-cv-00643-AA
ORDER

Plaintiff,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
AIKEN, Judge:
Plaintiff Sean L. Farley seeks attorney fees and costs pursuant to the Equal Access to Justice
Act ("EAJA"), 28 U.S.C. § 2412. The Commissioner ofSocial Security ("Commissioner") opposes
plaintiffs motion. For the reasons set forth below, plaintiffs motion is granted.

BACKGROUND
Plaintiff applied for disability insurance benefits and supplemental security income in 2011,
alleging disability beginning in 2006 due to hemophilia, hepatitis B and C, severe aiihritis, carpal
tunnel syndrome, depression, and extreme high blood pressure. Tr. 218, 222, 239. OnJuly23, 2013,
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an Administrative Law Judge ("ALJ") denied plaintiffs claim for benefits. Tr. 18. On Februaiy 13,
2015, the Appeals Council declined review. Tr. !. On June 27, 2016, this Court reversed and
remanded for fmther proceedings. Farley v. Colvin, 2016 WL 3509386 (D. Or. Jun. 27, 2016).
Having successfully obtained a remand, plaintifftimely filed a motion for attorney fees in the amount
of $5,985.22.
STANDARD OF REVIEW
A party that prevails against the United States government in a civil action is entitled, under
certain circumstances, to an award of attorney fees under the EAJA. 28 U.S.C. § 2412. In pe1tinent
pait, the EAJA provides:
[e]xcept as otherwise specifically provided by statute, a court shall award to a
prevailing patty other than the United States fees and other expenses, in addition to
any costs awarded pursuant to subsection (a), incurred by that party in any civil
action (other than cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any court having
jurisdiction ofthat action, unless the court finds that the position ofthe United States
was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(l )(A).
Thus, the EAJA establishes a two-paittest for determining whether an award ofattorney fees
is appropriate. The cou1t must first ascertain if the plaintiff was a prevailing party; if so, the comt
must then evaluate whether the government was substantially justified in its position and whether
other special circumstances exist that make an award of attorney fees unjust. Flores v. Shala/a, 49
F.3d 562, 567 (9th Cir. 1995). If the government proves it was substantially justified, attorney fees
will not be awarded to the plaintiff. Id.
DISCUSSION

It is undisputed plaintiff is a prevailing party and therefore satisfies the first requirement for
an award of attorney fees under 28 U.S.C. § 2412(d)(l )(A). See Shala/av. Schaefer, 509 U.S. 292,
300-02 (1993). Fmther, the Commissioner does not object to the amount of hours expended, the
amount of costs, or the requested hourly rate. See generally Def. 's Resp. Mot. Att'y Fees. I have
reviewed the petition and find the requested fee amount reasonable. Hensley v. Eckerhart, 461 U.S.
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424, 433 (1983). Accordingly, plaintiffs entitlement to attorney fees hinges on "whether the
government's decision to defend on appeal the procedural errors committed by the ALJ was
substantially justified." Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008).
A federal court is "require[d] to award fees when 'the [Commissioner's] position on the ...
issues that led to remand was not substantially justified.'" Tobe/er v. Colvin, 749 F.3d 830, 834 (9th
Cir. 2014) (quoting Flores, 49 F.3d at 564) (emphasis omitted)). In order to overcome the
presumption attorney fees will be awarded under the EAJA, the government has the burden to
demonstrate its position had "a reasonable basis in both law and fact." Pierce v. Underwood, 487
U.S. 552, 564 (1988). The requirement applies both to "the government's litigation position and the
underlying agency action giving rise to the civil action." Meier v. Colvin, 727 F.3d 867, 870 (9th
Cir. 2013). If the underlying agency action was not substantially justified, the court "need not
address whether the government's litigation position was justified." Id. at 872.
When the agency's decision is not suppo11ed by substantial evidence, that is a "strong
indication" the government's position in the underlying agency action was not substantially justified.
Thangaraja v. Gonzalez, 428 F.3d 870, 874 (9th Cir. 2005). It is the "decidedly unusual case in

which there is substantial justification under the EAJA even though the agency's decision was
reversed as lacking in reasonable, substantial and probative evidence in the record." Id. (citation and
quotation marks omitted). This is because there is "significant similarity" between the deferential
"substantial evidence" standard for review of the Commissioner's disability determination and the
"substantially justified" standard under the EAJA. J\!feier, 727 F.3d at 872.
In this case, remand for further proceedings was necessaiy because the ALJ failed to provide
specific, legitimate reasons to discredit the opinion of Dr. Taylor, plaintiffs treating physician.
Farley, 2016 WL 3509386 at *4. The ALJ provided a single reason for discrediting Dr. Taylor's

opinion: purported inconsistencies between Dr. Taylor's treatment notes and his statements that
plaintiff could lift 10 pounds only occasionally and would miss work more than two days per month.
Tr. 28-29. This Court held that "[c]ontrary to the ALJ's conclusion, Dr. Taylor's opinion is not
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inconsistent with his own treatment notes or the medical record." Farley, 2016 WL 3509386 at *4.
The government argues the ALJ was substantially justified in discrediting Dr. Taylor's
opinion because, "when evaluating conflicting medical opinions, an ALJ need not accept the opinion
of a doctor ifthat opinion is brief, conclusory, and inadequately suppo1ted by clinical findings."
Def.'sResp. Mot. Att'y Fees at3 (quotingBaylissv. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)).
But here, the ALJ did not reject Dr. Taylor's opinion because it was inadequately supported by
treatment notes-he rejected Dr. Taylor's opinion because it was inconsistent with treatment notes.
This Court is "constrained to review the reasons the ALJ asserts" on appeal. Connett v. Barnhart,
340 F.3d 871, 874 (9th Cir. 2003). I cannot find the Commissioner's position in the proceedings
below substantially justified based on a rationale the ALJ did not provide.
This Court also remanded because the ALJ erred at step two. Specifically, this Court held
the ALJ erred in failing to designate plaintiffs shoulder impingement "severe" at step two. Farley,
2016 WL 3509386 at *5. This Court also found the ALJ's failure to consider the relationship
between arthritis, hemophilia, and potential joint pain "raise[d] serious questions about whether the
... decision at step two rested on a complete and correct understanding ofthe record." Farley, 2016
WL 3509386 at *5.
The government contends the ALJ' s step-two analysis was substantially justified because the
"erroneous omission of an impairment at step two is harmless where the ALJ considers any
limitations stemming from that impairment at later steps of the sequential evaluation process."
Def.'s Resp. Mot. Att'y Fees at 4 (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)). This
argument is foreclosed by the prior opinion, in which this Comt held it was not possible to "conclude
the errors at step two were harmless" because "[t]he inclusion ofarthritis or hempophilic arthropathy
in the list of severe or nonsevere impairments could change the formulation of the RFC and what
jobs are available to the plaintiff." Farley, 2016 WL 3509386 at *5.
CONCLUSION

This is not the "decidedly unusual case" where the Commissioner's decision, though
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unsupported by substantial evidence, meets the substantial justification standard. Thangaraja, 428
F.3d at 874. Accordingly, plaintiff's EAJA application (doc. 26) is GRANTED. Plaintiff is awarded
fees in the sum of $5,985.22.
IT IS SO ORDERED.
Dated thisdJ day of November 2016.

fku~

Ann Aiken

United States District Judge

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