United States District Court, C.D. California
ANGEL E. GUILLEN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant
For Angel E. Guillen, Plaintiff: Erika Bailey Drake, Roger David Drake, LEAD ATTORNEYS, Drake and Drake, Calabasas, CA.
For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Esther H Kim, LEAD ATTORNEY, SAUSA - Assistant Regional Counsel - Scoial Security Admin, Office of the General Counsel Region IX, San Francisco, CA; Assistant U.S. Attorney LA-CV, AUSA - Office of U.S. Attorney, Civil Division, Los Angeles, CA; Assistant U.S. Attorney LA-SSA, Office of the General Counsel for Social Security Adm., San Francisco, CA.
MEMORANDUM OPINION GRANTING IN PART PLAINTIFF'S PETITION FOR EAJA FEES; AND ORDER THEREON
ROBERT N. BLOCK, UNITED STATES MAGISTRATE JUDGE.
Now pending before the Court and ready for decision is plaintiff's Motion for Attorneys' Fees Under the Equal Access to Justice Act (" EAJA"). The Government filed an Opposition to the Motion and plaintiff filed a Reply Brief (" Reply") thereto. Plaintiff requests that the Court award $4, 750 for work on the case culminating in the EAJA Motion, as well as $700 for preparation of the Reply, for a total requested award of $5, 450.
A. The Government's position was not substantially justified.
The Equal Access to Justice Act (" EAJA") provides in pertinent part:
" Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . 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).
The term " position of the United States" is not limited to the legal position of the Government during litigation, but rather includes " the action or failure to act by the agency upon which the civil action is based. See 28 U.S.C. § 2412(d)(2)(D); Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001); Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir. 1988). Thus, the burden here is on the Government to establish that it was substantially justified on the whole, considering both the underlying administrative decision of the ALJ and the Commissioner's litigation position in defending the ALJ's decision. See Gutierrez, 274 F.3d at 1259; Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). However, the Ninth Circuit also has observed that " [i]t is difficult to imagine any circumstance in which the government's decision to defend its actions in court would be substantially justified, but the underlying administrative decision would not." See Flores v. Shalala, 49 F.3d 562, 570 n.11 (9th Cir. 1995).
">In Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988), the Supreme Court held that the statutory phrase " substantially justified" does not mean " justified to a high degree." Rather, it means " justified in substance or in the main, " or in other words " justified to a degree that could satisfy a reasonable person." The Supreme Court further held that this interpretation of the phrase was equivalent to the formula adopted by the Ninth Circuit Court of Appeals, i.e., " a reasonable basis both in law and fact." See also Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). There is no presumption that the Government's position was not substantially justified merely because it lost the case. See United States v. Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002); Kali, 854 F.2d at 334. Under the reasonableness standard approved by the Supreme Court in Pierce, the Ninth Circuit has found the Commissioner's position substantially justified even where, for example, an ALJ " badly mischaracterized" evidence and " ignored . . . clear direct evidence" that the claimant's past work required more than her residual functional capacity limitations would allow her to do. See Lewis v. Barnhart, 281 F.3d 1081, 1083-84 (9th Cir. 2002).
Here, plaintiff raised three issues in the Joint Stipulation as grounds for reversal under Sentence Four of 42 U.S.C. § 405(g). Plaintiff then raised five additional issues in Supplemental Briefing as grounds for reversal under Sentence Six of 42 U.S.C. § 405(g). The Court rejected all of plaintiff's contentions with one exception: the Court found that the ALJ had failed to provide " specific and legitimate" reasons to reject the opinion of plaintiff's treating physician, Dr. Boutros. (See Order at 14-16.) Thus, plaintiff's entitlement to EAJA fees turns on whether the Government's position was substantially justified with respect to that issue.
">In Meier v. Colvin, 727 F.3d 867, 872-73 (9th Cir. 2013), the Ninth Circuit held that neither the Commissioner's underlying agency conduct nor the Commissioner's litigation position was substantially justified when the ALJ had failed to provide " specific and legitimate reasons, supported by substantial evidence" for rejecting a treating physician's opinion. The Ninth Circuit has since found that an ALJ's failure to properly consider a treating or examining physician's opinion means that the Commissioner's position was not substantially justified. See Herron v. Colvin, Fed.Appx., 2014 WL 5319713, at *1 (9th Cir. Oct. 20, 2014) (now citable for its persuasive value per Ninth Circuit Rule 36-3); Martin v. Commissioner of Social Sec., Fed.Appx., 2014 WL 4378719, at *1 (9th Cir. Sept. 5, 2014); Sanchez v. Colvin, 572 Fed.Appx. 496, 497 (9th Cir. 2014).
The Court likewise finds that the Commissioner's position here with respect to the treating physician issue was not substantially justified, especially because the Commissioner conceded in the Joint Stipulation that the ALJ's primary rationale for rejecting Dr. Boutros's opinion -- that the opinion was based on actual improprieties -- was not supported by any evidence. (See Order at 16; see also Joint Stip at 16.) Although the Commissioner continues to insist that what the ALJ actually meant as to Dr. Boutros's opinion was that " the treatment record was brief and that the opinion departed substantially from the rest of the evidence in the record" (see Opposition at 4), the Court already has squarely rejected that argument. As the Court previously noted, the Commissioner's interpretation was not persuasive because (a) it failed to account for the full context ...