ORDER GRANTING MOTION FOR ATTORNEYS' FEES
CHARLES R. BREYER, District Judge.
In this Social Security case, Plaintiff Jason David Hutton seeks attorneys' fees under the Equal Access to Justice Act ("EAJA") after winning his appeal at the Ninth Circuit. Because the Social Security Commissioner lacked substantial justification for her actions and the fees sought by Plaintiff are reasonable in the main, with the exceptions set forth herein, Plaintiff's motion is GRANTED in part and DENIED in part.
This case stems from Plaintiff's appeal of the Social Security Administration's denial of his application for disability benefits. In earlier proceedings before this Court, Plaintiff argued that the Administrative Law Judge ("ALJ") incorrectly found that Plaintiff's post-traumatic stress disorder ("PTSD") and depression were not "severe" impairments, inappropriately failed to credit Plaintiff's treating doctors, and improperly rejected lay testimony about Plaintiff's impairments. MSJ (dkt. 15). This Court granted summary judgment for Defendant on January 14, 2011. MSJ Order (dkt. 20). Plaintiff appealed to the Ninth Circuit, which reversed this Court's decision and remanded to the ALJ for further determinations. Hutton v. Colvin, 491 F.Appx. 850 (9th Cir. 2012). The Ninth Circuit remanded on the issues of the ALJ's failure to consider lay testimony and failure to include Plaintiff's non-severe PTSD in his assessment of Plaintiff's residual functional capacity. Plaintiff now seeks attorneys' fees under the EAJA for time spent on the district and circuit court appeals. Mot. Fees (dkt 32).
II. LEGAL STANDARD
A court shall award a prevailing party its fees and expenses in an action against the United States unless "the position of the United States was substantially justified or special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). A position is substantially justified if it is justified to a point that could satisfy a reasonable person, i.e., it has a reasonable basis in law or fact. Pierce v. Underwood , 487 U.S. 552, 565 (1988). It is the Commissioner's burden to show that her position was justified as to the issue upon which the court remanded. Flores v. Shalala , 49 F.3d 562, 569 (9th Cir. 1995).
When determining whether the government was substantially justified, the court must examine whether the government was justified in both its original act and its decision to defend it in court. Kali v. Bowen , 854 F.2d 329, 332 (9th Cir. 1988). The court may not find conduct "substantially justified when the agency's position was based on violations of... the agency's own regulations." Gutierrez v. Barnhart , 274 F.3d 1255, 1259 (9th Cir. 2001). When the basis for remand is a procedural issue, such as an incorrect credibility determination, the question is not whether the government's position on the disability claim was justified, but rather whether the government's decision to defend the determination on appeal was substantially justified. Shafer v. Astrue , 518 F.3d 1067, 1071 (9th Cir. 2008).
Defendant concedes that Plaintiff was a prevailing party before the Ninth Circuit. Consequently, this Court only considers whether Defendant's actions were substantially justified and the reasonableness of Plaintiff's attorneys' fees request. Because this case was remanded on the procedural issues of failing to include non-severe impairments and lay testimony in the disability determination, this Court determines whether the government's decision to defend the determination was justified.
A. The SSA's Defense of the Commissioner's Actions Was Not Substantially Justified
Defendant asserts that its defense of the ALJ's decision was substantially justified for three reasons. First, Defendant avers that the defense was justified because Plaintiff did not raise the issue of whether the ALJ failed to consider Plaintiff's "non-severe" impairment to the Ninth Circuit. Second, Defendant contends that the defense was justified because there was a genuine dispute as to whether the ALJ adequately considered lay testimony. Third, the Defendant argues that, under applicable precedent, arguing "forcefully and well" weighs in favor of a determination of substantial justification, and that it did so here.
Defendant argues that Plaintiff's failure to raise in the Ninth Circuit the issue of the ALJ's lack of consideration of Plaintiff's non-severe PTSD impairment weighs against Plaintiff's claim that Defendant lacked substantial justification for its actions. However, whether Plaintiff raised the issue or not is beside the point. Defendant's violation of its own regulations rendered its actions without substantial justification. See Gutierrez , 274 F.3d at 1259. In Gutierrez, the Ninth Circuit held that the government's defense of the ALJ's failure to fill out a form required by regulations was unjustified because the ALJ violated a clear and unambiguous requirement. Id.
Here, Defendant's regulations state: "[The SSA] will consider the combined effect of all of your impairments without regard to whether any such impairment, if considered separately, would be of sufficient severity." 20 C.F.R. § 404.1523. As determined by the Ninth Circuit, the ALJ's lack of consideration of Plaintiff's non-severe PTSD impairment violated Defendant's regulations. Hutton v. Colvin, 491 F.Appx. at 850. Similar to Gutierrez, where the regulations were found to be unambiguous, Defendant has not disputed the clarity of the regulations. Thus, both the ALJ's decision and Defendant's decision to defend it were not substantially justified because the ALJ's failure to consider Plaintiff's "non-severe" impairment had no reasonable basis in law.
Second, Defendant's argument that there was a genuine dispute over the consideration of lay testimony is unconvincing. Defendant argues that the disagreement between this Court's ruling and the Ninth Circuit's ruling supports her contention that Defendant's position was reasonable. However, "the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified." Pierce , 487 U.S. 569. Accordingly, this Court's previous acceptance of Defendant's position is not, without more, sufficient to establish the presence of a genuine dispute. Defendant offers no other basis ...