The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING PLAINTIFF'S PETITION FOR ATTORNEY'S
FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
ORDER GRANTING PLAINTIFF'S REQUEST FOR COSTS OF SERVICE
PURSUANT TO 28 U.S.C. § 1920 (Doc. 24)
On July 23, 2010, Plaintiff Olivia Gonzales ("Plaintiff") filed a complaint seeking judicial review of an Administrative Law Judge's ("ALJ") decision denying Plaintiff's application for Social Security benefits. (Doc. 1.) On January 4, 2012, the Court issued an order reversing the ALJ's decision and the case was remanded to the agency. (Doc. 23.) On February 1, 2012, Defendant filed a motion to amend the judgment pursuant to Federal Rule of Civil Procedure 59(e). (Doc. 24.) On February 6, 2012, Plaintiff filed an opposition to Defendant's motion. (Doc. 25.) On June 7, 2012, the Court issued an order denying Defendant's motion to amend the judgment. (Doc. 26.) Thereafter, Plaintiff filed a petition for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"). (Doc. 27.) Defendant filed an opposition, and Plaintiff filed a reply brief. (Docs. 29, 30.)
Currently pending before the Court is Plaintiff's petition for an award of EAJA fees and a request for costs of service under 28 U.S.C. § 1920. For the reasons set forth below, the Court finds that Defendant's litigation position and the ALJ's underlying actions were substantially justified. Accordingly, Plaintiff's petition for an award of EAJA fees is DENIED, and Plaintiff's request for costs pursuant to Section 1920 is GRANTED.
In assessing Plaintiff's residual functional capacity ("RFC"), the ALJ determined that Plaintiff was able to "understand, remember, and carry out simple one or two-step job instructions." (AR 28.) At a hearing where Plaintiff appeared with the assistance of counsel, a Vocational Expert ("VE") testified that, given Plaintiff's limitations, she remained able to perform the "world of unskilled work." On that basis, the ALJ concluded that Plaintiff was not disabled and denied her claim for benefits.
In seeking reversal of the ALJ's decision, Plaintiff argued, inter alia, that the RFC limiting Plaintiff to tasks involving only simple, one- or two-step job instructions was inconsistent with the Dictionary of Occupational Titles ("DOT") description of many of the jobs in the unskilled category that the VE testified Plaintiff could perform. In other words, Plaintiff asserted that there was a conflict between the VE's testimony that Plaintiff could perform the "world of unskilled work" when many of the jobs in the unskilled category required a general educational development ("GED") reasoning level beyond her mental limitation to tasks involving only simple, one- or two-step job instructions.*fn2
In considering Plaintiff's assertion of error on the part of the ALJ, the Court noted the absence of binding Ninth Circuit precedent on this issue. In light of this, the Court assessed how numerous district courts in the Ninth Circuit and other courts of appeals have considered this issue. The majority has concluded that a limitation to tasks involving simple, one- or two-step instructions, is inconsistent with the DOT's definition of level-3 reasoning.
Any application for an award of EAJA fees and other expenses must be made within thirty days of final judgment in the action and "must include an itemized statement from any attorney representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed." 28 U.S.C. § 2412(d)(1)(B). The party submitting the application is also required to allege that the position of the United States was not substantially justified. Id. Further, the party applying for an award of EAJA fees must have an individual net worth not greater than $2,000,000 at the time the civil action was filed. Id. § 2412(d)(2)(B).
To be "substantially justified," the position taken must have a reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552, 556-66 (1988); United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir. 2002). Substantial justification is interpreted as being "justified to a degree that could satisfy a reasonable person" and "more than merely undeserving of sanctions for frivolousness." Underwood, 487 U.S. at 565; see also Marolf, 277 F.3d at 1161. The fact that a court reverses and remands a case for further proceedings "does not raise a presumption that [the government's] position was not substantially justified." Kali v. Bowen, 854 F.2d 329, 335 (9th Cir. 1988). In considering whether the government's position is "substantially justified," courts consider not only the position of the United States taken in a civil action, but also the action or failure to act by the agency upon which the civil action is based. Gutierrez v. Barnhart, 274 F.3d 1255, 1259-60 (9th Cir. 2001); 28 U.S.C § 2412(d)(2)(D). Thus, courts "must focus on two questions: first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court." Kali, 854 F.2d at 33. "[I]t will be only a '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.'" Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (internal citations omitted).
In considering the issue of substantial justification in Le v. Astrue, the Ninth Circuit held that the government's position that a doctor whom the claimant had visited five times over three years was not a treating doctor, while incorrect, was substantially justified since a non-frivolous argument could be made that the five visits over three years were insufficient under the regulatory standard -- especially given the severity and complexity of the claimant's alleged mental problems. 529 F.3d 1200, 1201-02 (9th Cir. 2008).
In Lewis v. Barnhart, the court determined that the government's defense of an ALJ's erroneous characterization of the claimant's testimony was substantially justified. 281 F.3d 1081 (9th Cir. 2002). In that case, the ALJ had reviewed the claimant's testimony about her past work at a gas station and resolved ambiguities in her testimony against her. Id. at 1084. Although the district court disagreed with the conclusion reached by the ALJ and remanded the matter, on appeal of the claimant's fee request that was denied by the district court, the appellate court determined that the ALJ had a reasonable basis in fact for the underlying decision because there were facts that cast doubt on the claimant's subjective testimony about her past work. Id. at 1084. The Court further determined that the defendant's position to defend the ALJ's error had a reasonable basis in law because an ALJ must assess a claimant's ...