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Donald Cathey v. Commissioner of Social Security

April 18, 2013


The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge


Before the Court is Plaintiff Donald Cathey's ("Plaintiff") motion for attorneys' fees and costs under the Equal Access to Justice Act (28 U.S.C. § 2412(d)) ("EAJA"). (Doc. 20). The Commissioner of the Social Security Administration ("Commissioner" or "Defendant") objects to Plaintiff's request, contending that Plaintiff is not entitled to fees and that the amount requested is excessive and unreasonable. (Doc. 21). For the reasons that follow, the Court GRANTS Plaintiff's application, but reduces the amount awarded from $9,255.76 to $6,742.53.


On August 27, 2010, Plaintiff brought this action challenging the Commissioner's final decision denying his claim for disability benefits under Title II of the Social Security Act. (Doc. 1). On June 5, 2012, the Court issued an order reversing the ALJ's decision, remanding the case for further proceedings, and directing that judgment be issued in favor of Plaintiff. (Docs. 17, 18).

The Court found that the ALJ had committed two errors. First, the ALJ failed to provide "specific, clear, and convincing reasons" for rejecting Plaintiff's subjective symptom testimony. See Mersman v. Halter, 161 F.Supp.2d 1078, 1086 (N.D.Cal. 2001). Second, the ALJ failed to provide 2 "specific and legitimate" reasons for giving no weight to the opinion of treating physician Thomas 3 O'Laughlin, M.D. See Lester v. Chater, 81 F.3d 821, 839 (9th Cir. 1996). Based on the ALJ's 4 errors, the Court concluded that the Commissioner's decision must be reversed. 5


28 U.S.C. § 2412(d)(1)(A) provides:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A).

When a claimant wins a remand based on an incorrect decision by the Commissioner (a "sentence-four" remand), attorneys' fees are to be awarded unless the Commissioner shows that she was "substantially justified" in her position. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). Here, the parties do not dispute that Plaintiff is the prevailing party. The Commissioner contends, however, that the government's position was substantially justified.

The EAJA does not define "substantial justification." The Supreme Court, however, has defined it to mean "justified in substance or in the main" or "to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 566 (1988). "A position can be justified even though it is not correct, and we believe it can be substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Id. The Seventh Circuit restated this standard as "whether the agency has a rational ground for thinking it has a rational ground for its action." Kolman v. Shalala, 39 F.3d 173, 46 (7th Cir. 1994). The Commissioner must show that her conduct was reasonable at each stage of the proceedings. Flores v. Shalala, 49 F.3d 562, 572 (9th Cir. 1995).

A. The ALJ's Rejection of Plaintiff's Testimony Lacked Substantial Justification

Plaintiff had diabetic neuropathy and carpal tunnel syndrome, causing pain and numbness in his hands, feet and legs. Standing made the pain worse. Pain medications helped, but affected his concentration. He also had pain in his back, hip, and shoulders. He had difficulty raising his right 2 arm above his shoulder, and despite several surgeries had pain with the full range of motion in his 3 left. He could do laundry, cook, sweep, dust, do dishes, take out trash, rake leaves, and prune trees. 4

He could drive, though not for a long time, and could shop. He spent a typical day at home, reading, 5 watching television, and carving wood or making model airplanes. The carving had become difficult 6 due to hand and shoulder pain. In an eight-hour day, he could sit for six or seven hours and stand for 7 three, with frequent breaks. He could stand fifteen minutes at a time, sit for an hour (with his feet 8 up), use his hands for about twenty minutes, and reach forward for ten to fifteen minutes. 9

The ALJ found that Plaintiff underestimated his ability to stand, sit, walk, and manipulate objects. The ALJ explained:

[Plaintiff's] alleged level of disability is not consistent with the activities of daily living as outlined in the documents he filed. The wood carving activity and model airplane building, the household chores and cooking he does do not appear consistent with the disability he claims. AR at 19. The Commissioner defended this reasoning, explaining that "as part of a credibility analysis," the ALJ was entitled to rebut Plaintiff's allegations by using his "extensive" activities of daily living to show that he was in fact "quite functional." (Doc. 14 at 17). Plaintiff's carving and model-airplane making "undermined his allegations about hand limitations." Id.

The Court disagreed. The ALJ failed to provide "specific, clear, and convincing reasons" for rejecting Plaintiff's testimony. Although Plaintiff's activities undermined the claimed limitations in his hands and shoulders, they were insufficient to reject his inability to stand, walk, or sit for long periods of time, and had no bearing at all on his sitting limitations. "[T]he mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability." Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2011). "[M]any home activities are not easily transferable to . the more grueling environment of the workplace, where it might be impossible to periodically rest or take medication." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).

Although the ALJ erred in rejecting Plaintiff's alleged limitations in standing and walking, the Court finds that the ALJ at least had substantial justification in doing so. Even if Plaintiff's extensive activities did not compellingly rebut these limitations, they did at least conflict with them.

However, the same is not true of Plaintiff's sitting limitations. The Court found that these 2 limitations and Plaintiff's activities did not conflict at all, and the ALJ "failed to provide any reason" 3 for rejecting them. This error was inconsistent with the Commissioner's own regulations. See 20 C.F.R.§ 404.1529 ("Factors relevant to your symptoms, such as pain, which we will consider 5 include: . The location . of your pain"); Sampson v. Chater, 103 F.3d 918, 922 (9th Cir.1996) 6 (suggesting that it is an abuse of discretion to find an agency's position substantially justified when 7 the agency violates its own regulations). 8

Defendant argues that, because Plaintiff's alleged manipulative limitations conflicted with 9 his ability to carve wood and make model airplanes, this conflict "clearly called his overall credibility into question." Defendant notes that, in the context of immigration hearings, "a person who is deemed unbelievable as to one material fact may be disbelieved in all other respects." Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1059 (9th Cir. 2005). However, the ALJ never raised this argument. Just as the Commissioner cannot rely on post-hoc rationalization to defend an ALJ's finding of non-disability, she may not do so to show that the government's position was substantially justified. Fed. Election Comm'n v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986). The ALJ's stated reason was that Plaintiff's alleged limitations were not consistent with his daily activities. Although both the ALJ and the Commissioner discussed credibility in general terms, they did not discuss his credibility with respect to this issue, and did ...

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