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Nielsen v. Colvin

United States District Court, N.D. California, San Francisco Division

May 8, 2015

SUSAN CAROL NIELSEN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

ORDER GRANTING IN PART MS. NIELSEN'S MOTION FOR ATTORNEY'S FEES AND COSTS [Re: ECF No. 48]

LAUREL BEELER, Magistrate Judge.

INTRODUCTION

In this action, Plaintiff Susan Nielsen sought judicial review of a final decision by the Commissioner of Social Security Administration[1] that denied her Social Security Income disability benefits for her claimed disability of degenerative disc disease, hydrocephalus with associated epilepsy and imbalance, obesity and alcohol dependence. (Complaint, ECF No. 1[2]) After considering the administrative record and the applicable authority, the court granted in part Ms. Nielsen's motion for summary judgment and remanded the action to the Social Security Administration for further proceedings regarding Ms. Nielsen's residual functional capacity. (9/24/2015 Order, ECF No. 44.) Ms. Nielsen now moves, pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), for attorney's fees and costs. (Motion, ECF No. 48.) The Commissioner opposes the motion. (Opposition, ECF No. 49.) Upon consideration of the papers submitted and the applicable authority, the court grants in part Ms. Nielsen's motion.

STATEMENT

Ms. Nielsen applied for disability benefits on February 24, 2009. (Administrative Record ("AR") 176.) She alleged that she had been disabled since May 22, 2007 as a result of six herniated discs in her neck. (AR 179.) The Commissioner denied her application both initially and upon reconsideration. (AR 105-108, 110-14.) On September 28, 2009, Ms. Nielsen timely requested a hearing before an ALJ. (AR 118-19.) ALJ John Price conducted a hearing on June 1, 2010, in San Rafael, California. (AR 25.) The ALJ issued an order on July 28, 2010, denying benefits. (AR 33.) The ALJ found that Ms. Nielsen had four severe impairments: degenerative disc disease of the cervical spine status post fusion in 1998; hydrocephalus with associated epilepsy and imbalance; obesity; and alcohol dependence. (AR 27.) Nevertheless, the ALJ then found that she had not been under a disability at any time from May 22, 2007, the alleged onset date, through July 28, 2010, the date of the opinion. (AR 32-33.) The Appeals Council denied her request for review on May 27, 2011. (AR 5.)

On July 8, 2011, Ms. Nielsen timely sought judicial review of the final decision denying her Social Security Income disability benefits. (Complaint, ECF No. 1.) In her motion for summary judgment, Ms. Nielsen argued that remand was warranted: (1) under sentence six[3] of 42 U.S.C. § 405(g) because she was subsequently awarded Social Security Income disability benefits with respect to separate application for disability supplemental security income based on an onset date of disability of July 14, 2011; and (2) under sentence four[4] of 42 U.S.C. § 405(g) because the ALJ did not properly consider the testimony of the physicians who treated and examined her when determining her residual functional capacity and then improperly discounted her own testimony about the intensity, persistence, and limiting effect of her symptoms to the extent it was inconsistent with the ALJ's (erroneous) residual functional capacity determination. (Summary Judgment Motion, ECF No. 22; Supplemental Motion, ECF No. 41.)

In its September 24, 2014 order, although the court rejected Ms. Nielsen's arguments regarding a sentence four remand, it did conclude that a sentence six remand was warranted. (9/24/2015 Order, ECF No. 44.) While the court concluded that the ALJ properly rejected the opinion of her treating physician, Dr. Mendius, that she was permanently disabled, the court also concluded that the ALJ's residual functional capacity finding nevertheless was lacking for two reasons. ( Id. at 23-28.) First, the ALJ did not include findings about Ms. Nielsen's abilities to sit, push, or pull in his residual functional capacity assessment, as required by Social Security Ruling ("SSR") 96-8P and 20 C.F.R. § 404.1545(b). ( Id. at 24, 28.) SSR 96-8P says: "The RFC assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945. Only after that may RFC be expressed in terms of the exertional levels of work, sedentary, light, medium, heavy, and very heavy." (Emphasis added.) 20 CFR 404.1545(b), in turn, says: "When we assess your physical abilities, we first assess the nature and extent of your physical limitations and then determine your residual functional capacity for work activity on a regular and continuing basis. A limited ability to perform certain physical demands of work activity, such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions (including manipulative or postural functions, such as reaching, handling, stooping or crouching), may reduce your ability to do past work and other work." (Emphasis added.) Given that Ms. Nielsen testified that she was not able to sit for more than 45 minutes without pain, and Dr. Mendius's evaluation finding that Ms. Nielsen could sit for only four hours and could never push or pull, the court concluded that the ALJ needed to have made findings on these limitations as part of his residual functional capacity assessment. ( Id. at 28.)

Second, the ALJ did not sufficiently explain or support some of Ms. Nielsen's limitations. The ALJ found that Ms. Nielsen could stoop, kneel, and crouch occasionally, but this limitation was inconsistent with her treating physician's (Dr. Mendius) opinion that she should never stoop, kneel, crouch, or crawl, and the ALJ never explained how he resolved this inconsistency. ( Id. at 27.)

The court also concluded that the ALJ did not sufficiently explain the basis for his rejection of Ms. Nielsen's testimony. ( Id. at 29-30.) The court determined that the ALJ was within his discretion to find that her testimony about her falls her ability to drive was not credible, but it also stated that this finding did not necessarily undermine her testimony about her pain and other physical limitations, which did have some independent corroboration in the record. ( Id. at 30.)

In light of these errors, the court granted in part Ms. Nielsen's motion, remanded the action under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with the court's order. ( Id. ) The court then entered judgment in favor of Ms. Nielsen and against the Commissioner. (Judgment, ECF No. 45.)

Thereafter, Ms. Nielsen timely moved, pursuant to the EAJA, 28 U.S.C. § 2412(d), to recover 13, 312.99 in attorney's fees and costs.[5] (Motion, ECF No. 48; Reply, ECF No. 50.) The Commissioner timely opposed the motion. (Opposition, ECF No. 49.)

ANALYSIS

I. LEGAL STANDARD

The EAJA provides that a court shall award fees and costs incurred by a prevailing party "in any civil action... including proceedings for judicial review of agency action, brought by or against the United States... 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). To be considered a prevailing party eligible to receive an award of attorney fees under the EAJA, the party must have received a final judgment in the civil action. 28 U.S.C. § 2412(d)(2)(H). A claimant who receives a sentence four remand order in a Social Security case is a prevailing party for EAJA purposes. Shalala v. Shaefer, 509 U.S. 292, 301-02 (1993); Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995).

The burden of proof that the government's position was substantially justified rests on the government. Scarborough v. Principi, 54 U.S. 401, 403 (2004); Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). The Supreme Court has defined "substantially justified" as "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). "A substantially justified position ...


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