Curtis v. Colvin

Filing 27

ORDER granting Plaintiff's 23 Motion for EAJA fees in the amount of $7,322.30. Signed by U.S. District Judge John C Coughenour. (PM)

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THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 DAVID CURTIS, 10 CASE NO. C15-5234-JCC Plaintiff, ORDER v. 11 NANCY BERRYHILL, Commissioner of Social Security, 12 13 Defendant. 14 15 This matter comes before the Court on Plaintiff’s motion for Equal Access to Justice Act 16 17 18 19 20 21 22 23 24 25 26 (EAJA) attorney fees (Dkt. No. 23). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein. I. BACKGROUND Plaintiff applied for Social Security Disability Insurance (SSDI) benefits and was denied by an Administrative Law Judge (ALJ) on November 21, 2013. (Dkt. No. 3 at 2.) The Plaintiff sought review by this Court. After briefing and consideration of the issues, this Court declined to reconsider the ALJ’s findings, stating there was a reasonable ground for the findings. (See Dkt. No. 15.) On appeal, the Ninth Circuit overturned the findings of the ALJ, determining there was a lack of “substantial evidence.” (Dkt. No. 19 at 3.) The Ninth Circuit then remanded the case ORDER PAGE - 1 1 back to this Court. (Id. at 4.) 2 II. 3 DISCUSSION Defendant argues that Plaintiff is not entitled to attorney fees because under the EAJA an 4 award of attorney fees is not appropriate if the “position of the United States was substantially 5 justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412. However, the 6 Ninth Circuit noted it would be a “decidedly unusual case” in which substantial justification 7 exists for the Government’s position where the ALJ’s decision was overturned for “lacking 8 reasonable, substantial and probative evidence in the record.” Thangaraja v. Gonzales, 428 F.3d 9 870, 874 (9th Cir. 2005) (citing Al-Harbi v. I.N.S., 242 F.3d 882, 886 (9th Cir. 2001)). The Ninth 10 Circuit held that if the “case was unsupported by substantial evidence [there is] a strong 11 indication that the ‘position of the United States’ . . . was not substantially justified.” 12 Thangaraja, 428 F.3d at 874 (quoting 28 U.S.C. § 2412(d)(1)(A)). “The government bears the 13 burden of demonstrating substantial justification.” Id. (citing Gonzales v. Free Speech Coalition, 14 408 F.3d 613, 618 (9th Cir.2005)). 15 Defendant maintains the award is inappropriate because its position was “justified to a 16 degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). 17 Specifically, Defendant argues that the ambiguous recommendation of Dr. Hoskins, the state 18 agency consultant, and the ALJ’s finding that Plaintiff’s testimony lacked credibility, are 19 sufficient to substantially justify the United States’ position. (Dkt. No. 19 at 1–2.) However, as 20 explained by the Ninth Circuit, the ALJ was under an affirmative duty to remedy that ambiguity, 21 not make a finding based on it. (Dkt. No. 19 at 1–2.) 22 The Ninth Circuit also found that the ALJ failed to make specific findings for 23 determining Plaintiff was not credible. The lack of treatment records for Plaintiff’s back pain 24 was not sufficient to reject testimony of the Plaintiff “absent affirmative evidence of 25 malingering.” (Id. at 3.) The Ninth Circuit determined that the ALJ’s findings lacked substantial 26 ORDER PAGE - 2 1 evidence. (Id.) Thus, while there may be a disputed factual issue, this alone is not enough to 2 challenge the “strong indication” that Defendant lacked substantial justification. 3 III. 4 CONCLUSION For the foregoing reasons, Plaintiff’s motion for EAJA attorney fees (Dkt. No. 23) is 5 GRANTED. The Court ORDERS that attorney fees in the amount of $7,332.30 be awarded to 6 Plaintiff pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Attorney fees will be 7 paid to Plaintiff’s attorney, dependent upon verification that Plaintiff has no debt which qualifies 8 for offset against the awarded fees, pursuant to the Treasury Offset Program as discussed in 9 Astrue v. Ratliff, 130 S.Ct. 2521 (2010). Attorney fees are paid pursuant to 28 U.S.C. § 1920. 10 If Plaintiff has no such debt, then the check shall be made out to Plaintiff’s attorney and 11 mailed to his office as follows: 12 Kevin Kerr 13 P.O. Box 14490 14 Portland, OR 97293. 15 16 DATED this 11th day of July, 2017. A 17 18 19 John C. Coughenour UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 ORDER PAGE - 3

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