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Keith Oberdieck v. Michael J. Astrue

August 9, 2012


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge


This matter is before the Court on an application for attorneys' fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), filed on March 22, 2012, by Plaintiff Keith Oberdieck ("Plaintiff"). Defendant filed an opposition on April 23, 2011, arguing that the Government's position was substantially justified and that the fee requested is unreasonable. Plaintiff did not file a reply.

The matter is currently before the Court on the parties' briefs, which were submitted to the Honorable Dennis L. Beck, United States Magistrate Judge.


Plaintiff filed the instant Complaint challenging the denial of benefits on September 15, 2010.

On August 8, 2011, the Court issued Findings and Recommendations that the appeal be granted. The Court adopted the Findings and Recommendations on December 23, 2011. The action was remanded for further proceedings and the ALJ was instructed to properly evaluate the medical evidence and to properly consider Plaintiff's subjective complaints and lay witness testimony.

By this motion, Plaintiff seeks a total of $9,789.82 in attorneys' fees for 54.7 hours of attorney time and $350.00 in costs.


Under the EAJA, a prevailing party will be awarded reasonable attorney fees, unless the government demonstrates that its position in the litigation was "substantially justified," or that "special circumstances make an award unjust." 28 U.S.C. § 2412 (d)(1)(A). An award of attorney fees must be reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). "[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, and charges that are not properly billable to a client are not properly billable to the government. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). A court has wide latitude in determining the number of hours reasonably expended. Cunningham v. County of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988).

A. Substantial Justification

To show substantial justification for conduct, the Commissioner has the burden of establishing that the conduct had a reasonable basis both in law and fact based on the record of both the underlying government conduct at issue and the totality of circumstances present before and during litigation. Hardisty v. Astrue, 529 F.3d 1072 (9th Cir. 2010); Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996). The Commissioner is substantially justified if his position met "the traditional reasonableness standard-that is 'justified in substance or in the main,' or 'to a degree that could satisfy a reasonable person.'" Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (internal citations omitted). The Supreme Court has explained that "a position can be justified even though it is not correct, and we believe it can be substantially ... justified ... if it has a reasonable basis in law and fact." Id. (citing Pierce v. Underwood, 487 U.S. 552, 566 n. 2 (1988)). The Commissioner's position must be substantially justified "with respect to the issue on which the court based its remand." Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995).

Here, the Court remanded on three issues: (1) analysis of Plaintiff's credibility; (2) analysis of the treating physician's opinion; and (3) analysis of lay witness testimony.

In finding error in the ALJ's rejection of Plaintiff's testimony, the Court determined that five out of the six reasons cited by the ALJ were improper. In fact, after finding that the ALJ improperly relied on Plaintiff's failure to lose weight, the Court noted that the Commissioner's arguments in opposition disregarded SSR 02-1p and failed to discuss relevant case law. Defense of an ALJ's failure to comply with laws or regulations lacks substantial justification. See Gutierrez v. Barnhart, 274 F.3d 1255, 1259--60 (9th Cir.2001).

As to Dr. Cook's opinion, the Court found, in part, that the Commissioner's reliance on a "goal" was flawed. The ALJ had discounted Dr. Cook's assessment because it was not supported by his treatment notes, explaining that his limitation to 15 minutes of standing and walking was inconsistent with his note that Plaintiff's "goal was to do aerobic exercise for 30 minutes a day." The Court found that the 30 minutes was a "goal" and that the evidence did not demonstrate that Plaintiff could, in fact, exercise for 30 minutes a day. Given the obvious definition of the word "goal," the Commissioner's contention did not have a reasonable basis in law or fact for at least a portion of his argument. See ...

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