Degowin v. Colvin

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
PartiesTHOMAS DEGOWIN, Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
Docket NumberNo. 2:14-cv-2463 KJM DB,2:14-cv-2463 KJM DB
Decision Date18 January 2017
ORDER AND FINDINGS AND RECOMMENDATIONS

On December 14, 2016, the undersigned issued findings and recommendations with respect to plaintiff's motion for attorney fees pursuant to the Equal Access to Justice Act. (ECF No. 35.) On December 27, 2016, defendant filed objections. (ECF No. 36.) Therein, defendant asserts that the findings and recommendations failed to address defendant's argument pursuant to U.S. v. Kim, 797 F.3d 696, 704 (9th Cir. 2015). (ECF No. 36 at 2.)

The nature of defendant's argument with respect to Kim, as reflected in defendant's September 21, 2016 opposition, was not entirely clear to the undersigned. In this regard, defendant's argument with respect to Kim consisted of, at most, four sentences within a larger section of defendant's 14-page opposition concerning Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010), which the findings and recommendations did address, and directed the court to the prior version of the Kim decision, see U.S. v. Kim, 806 F.3d 1161 (9th Cir. 2015). Nonetheless, having more clearly articulated the argument in the objections to the findings and recommendations, the undersigned will vacate the December 14, 2016 findings and recommendations and address Kim herein. Accordingly, the undersigned now turns to plaintiff's fully briefed motion for attorney's fees pursuant to the Equal Access to Justice Act ("EAJA").

BACKGROUND

Plaintiff brought this action seeking judicial review of a final administrative decision denying his application for Disability Insurance Benefits under Title II of the Social Security Act. On February 4, 2016, following the filing of a motion for summary judgment by plaintiff and a cross-motion for summary judgment by defendant, the previously assigned Magistrate Judge issued findings and recommendations recommending that plaintiff's motion for summary judgment be granted, defendant's cross-motion be denied, the decision of the Commissioner of Social Security be reversed, and that this matter be remanded for further proceedings.1 (ECF No. 23.) Those findings and recommendations were adopted in full by the assigned District Judge on March 22, 2016. (ECF No. 25.)

On June 20, 2016, plaintiff filed this motion for attorney's fees. (ECF No. 27.) On July 8, 2016, defendant filed a request for an extension of time to respond to plaintiff's motion. (ECF No. 28.) Defendant's request for an extension of time was granted on July 18, 2016. (ECF No. 29.) After defendant failed to file a timely opposition, an order to show cause was issued on September 7, 2016. (ECF No. 31.) Defendant filed a response to the order to show cause and an opposition to plaintiff's motion on September 21, 2016. (ECF Nos. 32 & 33.) Plaintiff filed a reply on November 7, 2016. (ECF No. 34.)

STANDARDS

The EAJA provides that "a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil 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); see also Gisbrecht v.Barnhart, 535 U.S. 789, 796 (2002). "It is the government's burden to show that its position was substantially justified or that special circumstances exist to make an award unjust." Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001)

A "party" under the EAJA is defined as including "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed[.]" 28 U.S.C. § 2412(d)(2)(B)(i). The term "fees and other expenses" includes "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A). "The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the prevailing party to the extent that the party 'unduly and unreasonably protracted' the final resolution of the case." Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 2412(d)(1)(C) & 2412(d)(2)(D)).

A party who obtains a remand in a Social Security case is a prevailing party for purposes of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) ("No holding of this Court has ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.") . "An applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of whether disability benefits ultimately are awarded." Gutierrez, 274 F.3d at 1257.

ANALYSIS

Here, the undersigned finds, and defendant does not dispute, that plaintiff is the prevailing party, that plaintiff did not unduly delay this litigation, and that his net worth did not exceed two million dollars when this action was filed. (ECF No. 27 at 3.) Defendant, however, argues that the government's position was substantially justified. (ECF No. 33 at 6-9.)

A. Substantial Justification

"Substantial justification means 'justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable person.'" Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). "Put differently, the government's position must have a 'reasonable basis both in law and fact.'" Meier, 727 F.3d at 870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). "'[T]he position of the UnitedStates includes both the government's litigation position and the underlying agency action.'" Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) ("the relevant question is whether the government's decision to defend on appeal the procedural errors committed by the ALJ was substantially justified").

Here, the court found that the ALJ erred with respect to the treatment of the opinion of plaintiff's treating physician, Dr. Stanley. (ECF No. 23 at 7.) Defendant argues that the ALJ was, nonetheless, substantially justified "because the ALJ performed an analysis of Dr. Stanley's opinion and offered reasons for assigning the type of weight to the opinion, which the ALJ is required to under the regulations." (ECF No. 33 at 6.) Defendant's argument, however, is based on the mistaken assertion that the court "remanded the matter because it found that while the ALJ recounted and explained that he gave little weight to Dr. Stanley's opinion, the ALJ's articulated rationale lacked support and additional articulation." (Id.)

In this regard, this matter was remanded not because the ALJ failed to offer additional articulation, but because he "failed to cite to any specific piece of evidence supporting" the rejection of Dr. Stanley's opinion. (ECF No. 23 at 5.) Moreover, the court also examined the evidence that the ALJ cited elsewhere in his opinion and explained how even that evidence, although not specifically cited by the ALJ in support, appeared to fail to provide a specific and legitimate reason supported by substantial evidence to reject the opinion of plaintiff's treating physician. (Id. at 5-7); see generally Dominguez v. Colvin, 808 F.3d 403, 406-07 (9th Cir. 2015) ("if a treating doctor's opinion is contradicted by other medical evidence in the record, the ALJ may reject this opinion only by providing specific and legitimate reasons supported by substantial evidence"); Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) ("The ALJ must set out in the record his reasoning and the evidentiary support for his interpretation of the medical evidence."); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) ("The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.").

//// In support of its argument, the defendant argues that Hardisty v. Astrue, 592 F.3d 1072 (9th Cir. 2010), is "instructive and dispositive." (ECF No. 33 at 8.) In Hardisty, however, the Ninth Circuit was reviewing the "district court's ruling that the government's position . . . was substantially justified . . . . for abuse of discretion." (Id. at 1079-80.) Moreover, in Hardisty, "all of the inferences upon which [the government's position] rested had substance in the record." (Id. at 1080.) Here, the government's position was not supported by substance in the record.

Defendant also cites to Lewis v. Barnhart, 281 F.3d 1081 (9th Cir. 2002), in support of its argument. (ECF No. 33 at 6.) As with Hardisty, Lewis concerned the Ninth Circuit's review of a denial of EAJA fees "for an abuse of discretion." Id. at 1083. In affirming the district court's decision, the Ninth Circuit found that, while the "ALJ erroneously characterized" the plaintiff's testimony, "the Commissioner's decision to defend the ALJ's position . . . had a reasonable basis in law . . . ." (Id. at 1084.)

Here, it cannot be said that the Commissioner's decision had a reasonable basis in the law. See Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) ("an ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion"); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) ("If the ALJ wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record."); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) ("Even if the treating doctor's opinion is...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT