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Noemi Montano Lim v. Michael J. Astrue

November 30, 2011

NOEMI MONTANO LIM, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Pending before the court is plaintiff's motion for an award of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1). (Dkt. No. 23.) Plaintiff seeks fees based on 26.9 hours in 2010 at the rate of $175.06 per hour for attorney time and 9.3 hours in 2011 at the rate of $181.38 per hour, for a total amount of $6,395.95. Defendant contends that fees under the EAJA should not be awarded because the government's position was substantially justified. In the event fees are awarded, defendant contends that the amount of fees requested is not supported by a proper declaration and is excessive.

Plaintiff also submitted a bill of costs for $372.84 (dkt. no. 22), which defendant has not opposed.

After reviewing the documents in support of and in opposition to plaintiff's motion and bill of costs, and good cause appearing, the court now issues the following order.

DISCUSSION

Motion for Attorneys' Fees Under EAJA

The EAJA provides that the prevailing party in a civil action against the United States may apply for an order for attorneys' fees and expenses within thirty days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B). An applicant for Social Security benefits receiving a remand under sentence four of 42 U.S.C. § 405(g) is a prevailing party, regardless of whether the applicant later succeeds in obtaining the requested benefits. Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). In this case, the matter was remanded under sentence four pursuant to the order of the court on cross-motions for summary judgment. (See Dkt. No. 20.) Plaintiff thus is entitled to an award of fees under the EAJA, unless the court finds that the position of the United States was substantially justified. Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995) (holding that claimant is entitled to attorneys' fees unless the government shows that its position "with respect to the issue on which the court based its remand was 'substantially justified'").

A. Substantial Justification

The burden of establishing substantial justification is on the government. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme Court defined "substantial justification" as: 'justified in substance or in the main' -- that is, justified to a degree that could satisfy a reasonable person. That is no different from the 'reasonable basis in both law and fact' formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue.

Id. at 565. A position does not have to be correct to be substantially justified. Id. at 566 n.2; see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002).

In determining substantial justification, the court reviews both the underlying governmental action being defended in the litigation and the positions taken by the government in the litigation itself. Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other grounds, In re Slimick, 928 F.2d 304, 310 n.8 (9th Cir. 1990). Where the underlying government action was not substantially justified, it is unnecessary to determine whether the government's litigation position was substantially justified. Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). "The nature and scope of the ALJ's legal errors are material in determining whether the Commissioner's decision to defend them was substantially justified." Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996) (citing Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995)).

In its August 29, 2011 order, the court held that a remand for further proceedings was warranted with respect to two primary issues: (1) the ALJ failed to articulate specific and legitimate reasons for rejecting plaintiff's examining psychologist Dr. Kalman's opinion as to plaintiff's ability to concentrate for extended periods of time and to complete a workday; and (2) the ALJ failed to explain why he omitted a "ready access to restroom facilities" restriction from plaintiff's residual functional capacity ("RFC") assessment. (Dkt. No. 20.)

Defendant contends that the government's position was substantially justified. With respect to the first issue, defendant, as it did in its cross-motion for summary judgment, points to various portions of the record to argue that the ALJ's interpretation of Dr. Kalman's opinion was not unreasonable "even though this Court did not agree with it." (Dkt. No. 25, at 2.) However, the issue is not the court's reasonable disagreement with the ALJ's interpretation, but instead that the ALJ failed to provide any meaningful interpretation of Dr. Kalman's findings regarding plaintiff's ability to concentrate for extended periods and complete a workday. The ALJ merely indicated that he gave Dr. Kalman's assessment some weight, but entirely failed to explain his rationale for not incorporating Dr. Kalman's limitations into plaintiff's RFC. It is well established by the Commissioner's own regulations that if an RFC assessment conflicts with a medical source opinion, the ALJ must explain why the opinion was not adopted. SSR 96-8p, at *7. While it is true that the ALJ is not required to discuss all evidence presented, the ALJ must explain why significant probative evidence was rejected. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Dr. Kalman's opinions were not insignificant, given that he was the only examining psychologist to assess plaintiff.

As to the second issue, defendant argues that it was reasonable for the ALJ to give greater weight to the state agency physician's later October 3, 2007 assessment, which omitted a "ready access to restroom facilities" restriction, than to the earlier June 26, 2007 assessment that included such a restriction. This argument ignores two facts. First, the second assessment, which occurred just over three months after the first assessment, did not note any improvement in plaintiff's irritable bowel syndrome or urinary incontinence. It reveals no reason why the restriction was omitted from the second assessment, and the omission may well be inadvertent error. Second, the ALJ expressly found plaintiff's irritable bowel syndrome to be severe, which strongly ...


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