United States District Court, E.D. California
action was referred to a United States Magistrate Judge as
provided by 28 U.S.C. § 636 and Local Rule 302(c)(15).
and Recommendations Filed January 19, 2017
January 19, 2017, the magistrate judge filed findings and
recommendations recommending an award of attorney fees to
plaintiff under the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (EAJA). The findings and recommendations were
served on all parties and contained notice to all parties
that any objections to the findings and recommendations were
to be filed within fourteen days after service of the
findings and recommendations. Defendant filed objections to
the findings and recommendations. In accordance with the
provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule
304, this court has conducted a de novo review and carefully
considered defendant's objections.
raises two objections to the findings and recommendations.
First, defendant objects to the magistrate judge's
determination that the government's position was not
“substantially justified” within the meaning of
EAJA and controlling case law. ECF No. 38 at 2-5.
Specifically, defendant argues the magistrate judge
“has not properly addressed” the substantial
justification standard. ECF No. 38 at 3. Second, defendant
objects to the magistrate judge's failure to address
certain specific billing entries the government contends are
unreasonable or should reduce the time spent by
plaintiff's counsel on the reply brief. Id. at
5-8. After review, defendant's second objection is
overruled. The first objection is addressed below.
the EAJA, the court is required to award attorney fees to a
prevailing party unless it finds the position of the
government “was substantially justified or that special
circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A). “A position is ‘substantially
justified' if it has a ‘reasonable basis in law and
fact.'” Hardisty v. Astrue, 592 F.3d 1072,
1079 (9th Cir. 2010) (quoting Pierce v. Underwood,
487 U.S. 552, 565 (1988)). The government has the burden of
showing that its position was substantially justified.
Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir.
plain language of the EAJA” makes clear that the
government's position includes both the challenged agency
action and the decision to defend that action in court.
Id. For that reason, the court focuses first on
whether there was substantial justification for the
challenged agency action and second on whether the government
was substantially justified in defending that action in
court. Id. (quoting Kali v. Bowen, 854 F.2d
329, 332 (9th Cir. 1988). The focus of the inquiry is on
“the government's position regarding the specific
issue” on which, in this case, remand was based, not on
whether the claimant ultimately received benefits.
Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir.
2017); see also Hardisty, 592 F.3d at 1078 (citing
Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995)
(same); see also Lewis v. Barnhart, 281 F.3d 1081,
1086 (9th Cir. 2002) (in analyzing fees, court looks at
whether government was “substantially justified”
in taking position contrary to the basis for remand).
the issue on which plaintiff prevailed, and which formed the
basis for the order of remand, was the failure of the
Administrative Law Judge (ALJ) “to provide specific and
legitimate reasons supported by substantial evidence in the
record for rejecting the opinion of plaintiff's treating
physician.” ECF No. 23 at 7. Specifically, the court
found the ALJ had failed to cite any evidence in support of
the conclusions she reached concerning the treating
physician's opinion. Id. at 5. The court also
found it was “unclear” how several pieces of
specific evidence cited in an earlier part of the ALJ's
order undermined the treating physician's opinion, that
the ALJ had failed to explain how the treating
physician's opinion was inconsistent with either the
medical record or the treating physician's notes, and
that this inconsistency was “not apparent.”
Id. at 6. Whether plaintiff ultimately was entitled
to benefits was left unanswered by the court. In fact, while
the matter was remanded for further proceedings to correct
the errors the court identified, the court also found that
“the record as a whole creates serious doubts as to
whether plaintiff is, in fact, disabled within the meaning of
the Social Security Act.” Id. at 7.
the ALJ's failure here was a failure to identify specific
evidence in the record or to explain how such evidence
supported the decision to reject the treating physician's
opinion. This distinguishes the case before this court from
both Hardisty and Lewis, on which the
Hardisty, the ALJ had “based his decision on
an adverse credibility finding against Hardisty.”
Hardisty, 592 F.3d at 1074. The district court
reversed, finding the ALJ “had not provided clear and
convincing reasons for discrediting” the testimony as
required by applicable case law. Id. In
Hardisty, the ALJ had given three specific reasons
for the adverse credibility finding; the district court found
the reasons did not meet the “clear and convincing
reasons” standard. Id. In Lewis, the
district court determined the ALJ had failed to properly
characterize the claimant's testimony at step four of the
disability benefits determination process. Lewis,
281 F.3d at 1083. At that stage, the claimant has “the
burden of showing that she [can] no longer perform her past
relevant work.” Id. The duty of the ALJ at
this stage is “‘to make the requisite factual
findings to support his conclusion.'” Id.
(quoting Pinto v. Massanari, 249 F.3d 840, 844 (9th
Cir. 2001)). Again, the ALJ reviewed the claimant's
testimony and “resolved ambiguities in the
testimony” against the claimant. Id. at 1084.
The district court disagreed with the ALJ's
characterization of the claimant's testimony,
id. at 1083, but at the EAJA fees stage of the
proceeding found that the ALJ's position had both a
reasonable basis in law, because the ALJ was required to
evaluate the claimant's testimony and did so, as well as
a reasonable basis in fact because there “was testimony
in the record that” could have been viewed as casting
doubt on relevant statements by the claimant. Id. at
in both Hardisty and Lewis the ALJ made
specific findings as required by the law and cited to
evidence in support of those findings. Here, by contrast, the
ALJ did not cite to any specific evidence nor did she explain
how specific evidence in the record supported her rejection
of the treating physician's testimony. As the court found
on the merits of plaintiff's claim, “[t]he
uncontradicted opinion of a treating or examining physician
may be rejected only for clear and convincing reasons, while
the opinion of a treating or examining physician that is
controverted by another doctor may be rejected only for
specific and legitimate reasons supported by substantial
evidence in the record.” Id. (citing
Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.
1995)). It is the ALJ who has the “burden of giving
specific, legitimate reasons based on substantial
evidence” for rejecting a treating physician's
opinion in favor of a non-treating physician. Andrews v.
Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). “The
ALJ can meet this burden by setting out a detailed and
thorough summary of the facts and conflicting clinical
evidence, stating [her] interpretation thereof, and making
findings.” Magallanes v. Bowen, 881 F.2d 747,
751 (9th Cir.1989) (citation omitted).
discussed, the ALJ did not meet this burden. The court does
not find substantial justification for the ALJ's failure
to comply with this well-settled rule. Given the absence of
substantial justification for the ALJ's error, the court
need not look at whether the government's defense of that
failure in this litigation was substantially justified
because “[t]he government's position must be
substantially justified at each stage of the
proceedings.” Meier v. Colvin, 727 F.3d 867,
872 (9th Cir. 2013) (quoting Shafer v. Astrue, 518
F.3d 1067, 1071 (9th Cir. 2008)).
foregoing reasons, defendant's first objection also is
overruled. The findings and recommendations will be adopted
as supplemented by this order.
and Recommendations Filed February 6, 2018
on February 6, 2018, the magistrate judge filed findings and
recommendations on plaintiff's motion for an award of
attorney's fees under 42 U.S.C. §406(b). The
findings and recommendations were served on all parties and
contained notice to all parties that any objections to the
findings and recommendations were to be filed within fourteen
days after service of the findings and ...