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)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DAVID CURTIS,

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CASE NO. C15-5234-JCC
Plaintiff,

ORDER

v.

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NANCY BERRYHILL, Commissioner of
Social Security,

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Defendant.

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This matter comes before the Court on Plaintiff’s motion for Equal Access to Justice Act

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(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
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back to this Court. (Id. at 4.)

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II.

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DISCUSSION
Defendant argues that Plaintiff is not entitled to attorney fees because under the EAJA an

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award of attorney fees is not appropriate if the “position of the United States was substantially

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justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412. However, the

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Ninth Circuit noted it would be a “decidedly unusual case” in which substantial justification

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exists for the Government’s position where the ALJ’s decision was overturned for “lacking

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reasonable, substantial and probative evidence in the record.” Thangaraja v. Gonzales, 428 F.3d

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870, 874 (9th Cir. 2005) (citing Al-Harbi v. I.N.S., 242 F.3d 882, 886 (9th Cir. 2001)). The Ninth

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Circuit held that if the “case was unsupported by substantial evidence [there is] a strong

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indication that the ‘position of the United States’ . . . was not substantially justified.”

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Thangaraja, 428 F.3d at 874 (quoting 28 U.S.C. § 2412(d)(1)(A)). “The government bears the

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burden of demonstrating substantial justification.” Id. (citing Gonzales v. Free Speech Coalition,

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408 F.3d 613, 618 (9th Cir.2005)).

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Defendant maintains the award is inappropriate because its position was “justified to a

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degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988).

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Specifically, Defendant argues that the ambiguous recommendation of Dr. Hoskins, the state

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agency consultant, and the ALJ’s finding that Plaintiff’s testimony lacked credibility, are

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sufficient to substantially justify the United States’ position. (Dkt. No. 19 at 1–2.) However, as

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explained by the Ninth Circuit, the ALJ was under an affirmative duty to remedy that ambiguity,

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not make a finding based on it. (Dkt. No. 19 at 1–2.)

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The Ninth Circuit also found that the ALJ failed to make specific findings for

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determining Plaintiff was not credible. The lack of treatment records for Plaintiff’s back pain

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was not sufficient to reject testimony of the Plaintiff “absent affirmative evidence of

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malingering.” (Id. at 3.) The Ninth Circuit determined that the ALJ’s findings lacked substantial

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evidence. (Id.) Thus, while there may be a disputed factual issue, this alone is not enough to

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challenge the “strong indication” that Defendant lacked substantial justification.

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III.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for EAJA attorney fees (Dkt. No. 23) is

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GRANTED. The Court ORDERS that attorney fees in the amount of $7,332.30 be awarded to

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Plaintiff pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Attorney fees will be

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paid to Plaintiff’s attorney, dependent upon verification that Plaintiff has no debt which qualifies

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for offset against the awarded fees, pursuant to the Treasury Offset Program as discussed in

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Astrue v. Ratliff, 130 S.Ct. 2521 (2010). Attorney fees are paid pursuant to 28 U.S.C. § 1920.

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If Plaintiff has no such debt, then the check shall be made out to Plaintiff’s attorney and

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mailed to his office as follows:

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Kevin Kerr

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P.O. Box 14490

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Portland, OR 97293.

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DATED this 11th day of July, 2017.

A

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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ORDER
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