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Luther v. Saul

United States District Court, N.D. California, Eureka Division

July 16, 2019

JOSEPH GERARD LUTHER, Plaintiff,
v.
ANDREW M. SAUL, Defendant.

          ORDER GRANTING MOTION FOR ATTORNEY FEES RE: DKT. NO. 26

          ROBERT M. ILLMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff filed an application for an award of attorney fees in the amount of $7, 154.00 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. See Mot. (dkt. 26). Defendant's opposition, if any, was due on July 8, 2019. Defendant did not file, timely or otherwise, an opposition.

         BACKGROUND

         On March 26, 2019, the court issued an opinion and judgment granting Plaintiff's Motion for Summary Judgment and denying Defendant's Cross Motion for Summary Judgment. See Order (dkt. 23). The court found that the ALJ erred at Step Two of the disability determination process related to Plaintiff's anxiety and panic attacks. Id. at 6-7. The court found that the ALJ's analysis related to these two claims of medically severe impairments was insufficient. Id. The court also noted that while Defendant conceded in its briefing that “the ALJ technically erred, ” Defendant argued that Plaintiff failed to show that the error was not harmless. Id.

         In determining that this matter should be remanded for the errors committed at Step Two, the court rejected Defendant's harmless error argument based on the Circuit's instruction that an ALJ's failure to follow the procedure set forth in 20 C.F.R. § 404.1520a is not harmless in cases that involve a ‘colorable' claim of mental impairment. See Keyser v. Comm'r SSA, 648 F.3d 721, 725 (9th Cir. 2011). A claim is ‘colorable' if it is not “wholly insubstantial, immaterial, or frivolous.” Boettcher v. Sec'y of Health & Human Servs., 759 F.2d 719, 722 (9th Cir. 1985). Based on the uncontroverted evidence in support of Plaintiff's claim that he suffered from anxiety and panic attacks, which included: (1) narrative statements by his wife and himself on SSA-provided function report forms; (2) Plaintiff's testimony at the hearing; (3) extensive medical records from his treating physician consistently indicating an assessment for an anxiety disorder; and (4) a substantiating observation by a state agency reviewing consultant, noting that Plaintiff received a “diagnosis of Anxiety/Panic at all visits” between June of 2005 and July of 2011, the court found that Plaintiff presented more than a ‘colorable' claim of mental impairment and remanded the case.

         LEGAL STANDARD

         The purpose of the EAJA statute is to “eliminate financial disincentives for those who would defend against unjustified government action and thereby to deter the unreasonable exercise of government authority.” Guitierrez v. Barnhart, 274 F.3d 1255, 1262 (9th Cit. 2001) (quoting Ardestani v. INS, 502 U.S. 129, 138 (1991)). To prevail in a motion for EAJA fees, the plaintiff must be a prevailing party and the government's position must be without substantial justification. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

         DISCUSSION

         Plaintiff as Prevailing Party

         An applicant for Social Security benefits who receives a remand under sentence four of 42 U.S.C. §405(g) is a “prevailing party” and eligible for fees and costs under the EAJA. Shalala v. Schaefer, 509 U.S. 292, 302 (1993). Plaintiff is therefore a prevailing party within the meaning of the law. Because Plaintiff's net worth was less than $2, 000, 000 when the civil action was filed, he is an eligible party under 28 U.S.C. § 2412(d)(2)(B).[1]

         Position of the United States Was Not Substantially Justified

         Because Plaintiff was the prevailing party in this case, the EAJA mandates an award of attorney fees “unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust.” 28 USC § 2412(d)(1)(A); Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1998). The Commissioner in this case bears the burden of establishing that his position was “substantially justified.” Gutierrez, 274 F.3d at 1258. To meet this standard, the government must show that its position was “justified in substance or in the main - that is, justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted). “Put differently, the government's position must have a reasonable basis both in law and fact.” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). Under the EAJA, both the “government's litigation position and the underlying agency action giving rise to the civil action” must be substantially justified to avoid an award of fees. Id. Thus, “[t]he government's position must be substantially justified at each stage of the proceedings.” Id. at 872 (quoting Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998)) (internal quotation marks omitted). In this circuit, “a holding that the agency's decision was unsupported by substantial evidence is a strong indication that the position of the United States was not substantially justified.” Meier, 727 F.3d at 872 (internal quotations and modifications omitted); see also Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (“[I]t will be only a decidedly unusual case in which there is substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record.”).

         As discussed above, the court found that the ALJ's error at Step Two was not harmless because Plaintiff had presented at least a ‘colorable' claim of mental impairment and remand was required. See Keyser, 648 F.3d at 725; see also Boettcher, 759 F.2d at 722. While Defendant conceded the ALJ's error, Defendant's argument that the error was harmless was not substantially justified in light of Plaintiff's presentment of, at the very least, a colorable mental impairment claim. Moreover, as stated above, it is Defendant's burden to establish that his position was substantially justified, and Defendant has failed to attempt to meet his burden when he failed to timely file an opposition.

         Plaintiff's Fee ...


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