Campbell v. Commissioner Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SCOTT B. C.,1 6:18-cv-01738-BR

Plaintiff, OPINION AND ORDER

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

KATHERINE L. EITENMILLER

BRENT WELLS

Harder, Wells, Caron & Manning. P.C.

474 Willamette Street

Eugene, OR 97401

(541) 686-1969

Attorneys for Plaintiff

SCOTT ERIK ASPHAUG

Acting United States Attorney

RENATA GOWIE

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1 In the interest of privacy this Court uses only the first

name and the initial of the last name of the nongovernmental

party in this case.

1 - OPINION AND ORDER

MICHAEL W. PILE

Acting Regional Chief Counsel

LARS J. NELSON

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-3717

Attorneys for Defendant

BROWN, Senior Judge.

This matter comes before the Court on Plaintiff Scott B.

C.'s Motion (#24) for Fees and Expenses pursuant to the Equal

Access to Justice Act (EAJA) in which he seeks an award of

attorneys' fees and costs pursuant to 28 U.S.C. § 2412.

For the reasons that follow, the Court GRANTS Plaintiff's

request for EAJA fees and AWARDS fees of $14,998.51 and costs of

$905.00.

BACKGROUND

On July 14, 2015, Plaintiff protectively filed his

application for DIB benefits. Plaintiff=s application was denied

initially and on reconsideration. On July 24, 2017, an

Administrative Law Judge (ALJ) held a hearing on Plaintiff's

application.

On October 27, 2017, the ALJ issued an opinion in which he

found Plaintiff is not disabled and, therefore, is not entitled

2 - OPINION AND ORDER

to benefits. On July 26, 2018, the Appeals Council denied

Plaintiff=s request to review the ALJ's decision, and the ALJ's

decision became the final decision of the Commissioner.

On September 29, 2018, Plaintiff filed a Complaint in this

Court seeking review of the Commissioner=s decision.

On October 8, 2019, this Court issued an Opinion and Order

(#14), affirmed the decision of the Commissioner, and dismissed

the matter pursuant to sentence four of 42 U.S.C. § 405(g).

On December 4, 2019, Plaintiff filed a Notice of Appeal

(#16) to the Ninth Circuit.

On October 30, 2020, the Ninth Circuit issued a Memorandum

(#19) decision in which it reversed the decision of the

Commissioner and remanded the matter for the payment of

benefits.2

On January 28, 2021, this Court entered Judgment of Remand

(#23) pursuant to the Ninth Circuit Mandate (#27) issued on

January 27, 2021.

On April 28, 2021, Plaintiff, as the prevailing party,

filed a Motion (#24) for attorneys' fees and costs pursuant to

2 On January 19, 2021, the Ninth Circuit issued an Order

(#20) that amended its Memorandum decision to clarify the period

of disability and entered an Amended Memorandum (#21).

3 - OPINION AND ORDER

EAJA. Plaintiff seeks attorneys' fees in the amount of

$14,998.51 and costs in the amount of $905.00.

STANDARDS

Under EAJA, 28 U.S.C. § 2412(d)(1)(A), a plaintiff may

recover attorneys' fees and costs in an action against the

United States or any agency or official of the United States if

"(1) the party seeking fees is the prevailing party; (2) the

government has not met its burden of showing that its positions

were substantially justified or that special circumstances make

an award unjust; and (3) the requested [attorneys'] fees and

costs are reasonable." United States v. Milner, 583 F.3d 1174,

1196 (9th Cir. 2009)(citing 28 U.S.C. § 2412(d)(1)(A)). See

also Perez-Arellano v. Smith, 279 F.3d 791, 792 (9th Cir. 2002).

"To be a prevailing party, the party must have received an

enforceable judgment on the merits or a court-ordered consent

decree." United States v. Milner, 583 F.3d 1174, 1196 (9th Cir.

2009). "Enforceable judgments and court-ordered consent decrees

create 'the material alteration of the legal relationship of the

parties' necessary to permit an award of attorney's fees."

Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and

Human Res., 532 U.S. 598, 604 (2001)(internal citation omitted).

4 - OPINION AND ORDER

A prevailing plaintiff is not entitled to attorneys' fees

under EAJA when the Commissioner's positions were substantially

justified. Li v. Keisler, 505 F.3d 913, 918 (9th Cir. 2007).

See also Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008). The

Commissioner's positions are substantially justified if they are

reasonably based in both law and fact. Hardistry v. Astrue, 592

F.3d 1072, 1079 (9th Cir. 2010)(citing Pierce v. Underwood, 487,

U.S. 552, 556 n.2 (1988)). The Commissioner's failure to

prevail on the merits "does not raise a presumption that his

position was not substantially justified." Gonzales v. Free

Speech Coalition, 408 F.3d 613, 620 (9th Cir. 2005)(citing Kali

v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)).

When the Commissioner opposes a claimant's fee request, he

bears the burden to establish that his positions at each stage

of the proceeding were "substantially justified." Corbin v.

Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998). See also U.S. v.

Real Property at 2659 Roundhill Drive, Alamo, Cal., 283 F.3d

1146, 1151 (9th Cir. 2002). To prevail, therefore, the

Commissioner must establish the positions taken in opposition to

the claimant's efforts to obtain Social Security benefits both

in the proceedings before this Court and in the underlying

administrative action were substantially justified. See Lewis,

5 - OPINION AND ORDER

281 F.3d at 1085-86.

The Commissioner's position must be "'justified in

substance or in the main,' C that is, justified to a degree that

could satisfy a reasonable person." Gonzales, 408 F.3d at 618

(citing Pierce v. Underwood, 487 U.S. 552, 565 (1988)). "Put

another way, substantially justified means there is a dispute

over which 'reasonable minds could differ.'" Gonzales, 408 F.3d

at 618 (citing League of Women Voters of Cal. v. FCC, 798 F.2d

1255, 1257 (9th Cir. 1986)).

DISCUSSION

Plaintiff asserts the Commissioner's positions were not

substantially justified, and, therefore, Plaintiff is entitled

to attorneys' fees and costs as the prevailing party.

The Commissioner, however, contends the Commissioner was

substantially justified in defending the issues adjudicated and

Plaintiff's request for filing fees is untimely.

I. The government's position was not substantially justified.

Plaintiff contends he is entitled to an award of attorneys'

fees and costs as the prevailing party on the ground that the

Commissioner cannot show his position "with respect to the issue

on which the court based its remand was 'substantially

6 - OPINION AND ORDER

justified.'" Plaintiff points to the fact that the Ninth

Circuit concluded the ALJ's findings regarding the opinion of

Dr. Frederic Van Dis, Plaintiff's treating physician, and

Plaintiff's testimony did not have any basis in fact or law,

and, therefore, the Commissioner's position in defending those

findings is not justified.

The Commissioner contends he had a reasonable basis in law

and in fact to defend the ALJ's findings and, therefore, he was

substantially justified in defending this matter on appeal.

A. Standards

It is the government's burden to show that the

position of the United States was substantially justified.

Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

"Substantial justification means . . . justified to a degree

that could satisfy a reasonable person. Put differently, the

government's position must have a 'reasonable basis both in law

and fact.'" Meier, 727 F.2d at 870 (quoting Pierce v.

Underwood, 487 U.S. 552, 565 (1988)). Thus, the court "must

focus on two questions: first, whether the government was

substantially justified in taking its original action; and,

second, whether the government was substantially justified in

defending the validity of the action in court." Gutierrez v.

7 - OPINION AND ORDER

Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001).

B. Analysis

The Ninth Circuit focused on Dr. Van Dis's opinion

that Plaintiff would "miss more than 4 days per month." The

Ninth Circuit noted:

The ALJ gave little weight to this opinion. The

ALJ did not include the limitation that

[Plaintiff] would miss "more than 4 days per

month" in [Plaintiff's] RFC. Nor did the ALJ

give any reason for not including this

limitation. The ALJ’s reasons for giving little

weight to the treating physician are not

supported by substantial evidence. If the

treating physician’s opinion is given full

weight, Plaintiff is entitled to disability

benefits because the Vocational Expert has

already opined that no jobs exist for one with

[Plaintiff’s] limitations.

* * *

Nor does substantial evidence support the ALJ’s

rejection of Dr. Van Dis’ functional limitations

on the ground that [Plaintiff] regained the

ability to walk up to 2.2 miles. The record

makes clear that those exertions consistently

required [Plaintiff] to sleep for hours

afterwards. [Plaintiff’s] ability to walk before

sleeping does not contradict Dr. Van Dis’

functional limitations. Had the opinion of the

only treating physician correctly been given full

weight, [Plaintiff] would have been found to have

been disabled during the claimed period of

disability.

Memorandum (#19) at 3, 4.

In Meier v. Colvin the Ninth Circuit reversed the

ALJ's decision and remanded the case on the ground that the ALJ

8 - OPINION AND ORDER

failed to offer specific and legitimate reasons supported by

substantial evidence for rejecting the treating physician's

opinion that the claimant was incapable of working. 404 F.

App'x 150 (9th Cir. 2010). On subsequent appeal of the district

court's order denying the claimant's motion for EAJA fees, the

Ninth Circuit held the position of the United States was not

substantially justified and reversed for the payment of fees and

costs. Meier v. Colvin, 727 F.3d 867 (9th Cir. 2013). The

Court stated:

In reaching these conclusions [that the ALJ

erred], we applied the deferential substantial

evidence standard of review. Under this

standard, "'[s]ubstantial evidence' means . . .

such relevant evidence as a reasonable person

might accept as adequate to support a

conclusion.” Lingenfelter v. Astrue, 504 F.3d

1028, 1035 (9th Cir. 2007). Given the

significant similarity between this standard and

the substantial justification standard—

"justified to a degree that could satisfy a

reasonable person," Pierce, 487 U.S. at 565, 108

S. Ct. 2541—this court and other circuits have

held that 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." Thangaraja, 428 F.3d at 874; see

also id. ("[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.'" (quoting Al–Harbi, 284 F.3d at 1085));

Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir.

1988)(holding that "a lack of substantial

9 - OPINION AND ORDER

evidence indicates, but does not conclusively

establish, that the government's position

concerning a claim was not substantially

justified").

* * *

Because the government's underlying position was

not substantially justified, we need not address

whether the government's litigation position was

justified. See Shafer, 518 F.3d at 1071 ("The

government's position must be substantially

justified at each stage of the proceedings."

(quoting Corbin v. Apfel, 149 F.3d 1051, 1052

(9th Cir.1998))(internal quotation marks

omitted)); Li v. Keisler, 505 F.3d 913, 918 (9th

Cir. 2007)(order)("[T]he government must show

that all of these positions were substantially

justified in order to avoid an award of EAJA

fees."). . . . Even if we were to reach the

issue, we would conclude that the government's

litigation position—defending the ALJ's errors on

appeal—lacked the requisite justification. See

Sampson, 103 F.3d at 922 ("It 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.")

(quoting Flores v. Shalala, 49 F.3d 562, 570

n.11 (9th Cir. 1995))(internal quotation marks

omitted). Although the government proffers a

lengthy defense of the ALJ's decision, it largely

reiterates arguments that we rejected in the

previous appeal. Given the serious flaws in the

ALJ's analysis, we are not persuaded that the

government reasonably chose to defend the ALJ's

decision in this action.

Meier, 727 F.3d at 872–73. The Court concludes Meier controls

in this case.

Here, as noted, the Ninth Circuit concluded the ALJ

10 - OPINION AND ORDER

did not provide in his assessment of Plaintiff's RFC any legally

sufficient reasons supported by substantial evidence in the

record for not including the limitation that Plaintiff would

miss more than four days of work per month. The Ninth Circuit

also noted the ALJ did not give legally sufficient reasons

supported by substantial evidence in the record for giving

little weight to the opinion of Dr. Van Dis, Plaintiff's

treating physician.

On this record the Court concludes the government’s

position was not substantially justified because the

Commissioner’s position was not supported by substantial

evidence in the record. Accordingly, the Court concludes

Plaintiff is entitled to an award of attorneys’ fees pursuant to

EAJA.

II. Plaintiff seeks a reasonable amount of attorneys' fees.

Plaintiff seeks attorneys' fees of $14,998.51. The fees

represent a total of 72.70 hours of work as follows: 2.55 hours

at an hourly rate of $201.60 for work performed in 2018; 36.10

hours at an hourly rate of $205.25 for work performed in 2019;

and 34.05 hours at an hourly rate of $207.78 for work performed

in 2020/2021. The government does not object to these hours or

the hourly rates, and the Court notes the rates are within the

11 - OPINION AND ORDER

statutory cap on hourly rates provided for under the EAJA.

Although the government has not challenged the

reasonableness of the fees sought by Plaintiff, the Court,

nonetheless, must determine whether the requested attorneys'

fees are reasonable. 28 U.S.C. § 2412(d)(1)(A). See also

Perez-Arellano v. Smith, 279 F.3d 791, 792 (9th Cir. 2002). The

Court notes other courts have concluded a similar number of

hours is reasonable. See, e.g., Johnson v. Astrue, No. 07-CV-

2387, 2008 WL 3984599, at *2 (N.D. Cal. Aug. 27, 2008)(57 hours

reasonable); Wirth v. Barnhart, 325 F. Supp. 2d 911, 913 (E.D.

Wis. 2004)(61.1 hours reasonable). See also Patterson v. Apfel,

99 F. Supp. 2d 1212, 1214 n.2 (C.D. Cal. 2000)(citing numerous

cases in which district courts have awarded attorneys' fees for

20-50 hours of work performed in challenging denials of Social

Security benefits).

On this record the Court concludes the amount of time spent

by Plaintiff’s counsel in the handling of this matter is

appropriate and the fees sought are reasonable.

III. Plaintiff's request for costs is timely.

Plaintiff seeks recovery of costs in the amount of $905.00

for filing fees, which includes the district court's filing fee

of $400.00 and the appellate court's filing fee of $505.00. The

12 - OPINION AND ORDER

Commissioner contends Plaintiff's request for costs is untimely

pursuant to 28 U.S.C. § 1920(1) and Local Rule (LR) 54-1(a).

As noted, the Ninth Circuit's Mandate in this case was

entered on January 27, 2021, and this Court entered a Judgment

of Remand on January 28, 2021.

A. Standards

28 U.S.C. § 1920 allows the court to tax costs,

including filing fees, upon the filing of a cost bill after

entry of judgment. LR 54-1(a) provides a cost bill must be

filed no later than 14 days after entry of judgment or docketing

of the appellate court's mandate.

The EAJA permits the taxing of costs against the

United States as enumerated in § 1920. 28 U.S.C. § 2412(a)(1).

Subsection (d)(1)(A) provides:

Except as otherwise specifically provided by

statute, a court shall award to a prevailing

party other than the United States fees and other

expenses, in addition to any costs awarded

pursuant to subsection (a), incurred by that

party in any civil action . . . 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.

Subsection (d)(1)(B) also provides:

A party seeking an award of fees and other

13 - OPINION AND ORDER

expenses shall, within thirty days of final

judgment in the action, submit to the court an

application for fees and expenses which shows

that the party is a prevailing party and is

eligible to receive an award under this

subsection. . . . The party shall also allege

that the position of the United States was not

substantially justified.

B. Analysis

This Court has held a claimant may recover filing fees

as an "expense" pursuant to subsection (d) of the EAJA. In Webb

v. Astrue this Court stated:

A prevailing party entitled to fees and expenses

under the EAJA can recover costs and litigation

expenses under two distinct EAJA provisions. The

statute provides that "a court shall award to a

prevailing party other than the United States

fees and other litigation expenses, in addition

to any costs awarded pursuant to subsection

(a)(1), incurred by that party in any civil

action. . . ." 28 U.S.C. § 2412(d)(1)(A). This

means that the prevailing party is entitled to

both "costs" pursuant to subsection (a)(1) and

"litigation expenses" pursuant to subsection

(d)(1)(A).

Recoverable costs under EAJA subsection (a)(1)

are governed by 28 U.S.C. § 1920, which

compensates parties for fees of the clerk. . . .

But the EAJA also awards "fees and other

expenses" incurred in the litigation, under

subsection (d)(1)(A). . . . This provision has

been interpreted as expanding rather than

contracting the expenses that are compensable

under the statute. See Int'l Woodworkers of

America v. Donovan, 792 F.2d 762, 767 (9th Cir.

1985)(holding that expenses enumerated under 28

U.S.C. § 2412(d)(2)(A) are examples, not an

exclusive list).

14 - OPINION AND ORDER

Webb v. Astrue, No. CV 08-1067-HU, 2010 WL 5631616, at *3 (D.

Or. Nov. 23, 2010), report and recommendation adopted sub nom.

Webb v. Comm'r of Soc. Sec. Admin., No. CV 08-1067-HU, 2011 WL

202288 (D. Or. Jan. 18, 2011). See also Freeman v. Mukasey, No.

04-35797, 2008 WL 1960838, at *7 (9th Cir. Feb. 26, 2008)

(claimant's request for $514.84 for filing fees allowed without

objection); Inmon v. Colvin, No. 1:15-cv-00982-CL, 2016 WL

6694499, at *1 (D. Or. Sept. 15, 2016)(granting application for

attorneys' fees and costs, including the filing fee, filed

pursuant to subsection (d) of the EAJA); Colton v. Berryhill,

No. 3:15-cv-01962-CL, 2017 WL 5562417, at *1-*4 (D. Or. May 19,

2017)(same); Youtsey v. Astrue, No. 1:11-cv-6014-CL, 2012 WL

3026558, at *1–*2 (D. Or. July 19, 2012)(same); Vanderpool v.

Astrue, No. 03:10-cv-06264-HU, 2012 WL 5399206, at *2 (D. Or.

Oct. 16, 2012)(same); Schroeder v. United States, No. CV 08-

1277- AC, 2010 WL 3222106, at *1 (D. Or. Aug. 13, 2010)(same);

Puckett v. Astrue, No. 2:11-cv-6250-SU, 2013 WL 1222858, at *1

(D. Or. Feb. 13, 2013)(citing subsection (d) of the EAJA as

authority for "federal courts to award attorney fees, court

costs and other expenses when a party prevails against the

United States in a proceeding for review of an agency action,

unless the court finds the position of the United States was

15 - OPINION AND ORDER

substantially justified or that special circumstances make an

award unjust"); Bottom v. Comm'r, Soc. Sec. Admin., No. 6:13-cv-

01106-CL, 2015 WL 78763, at *1 (D. Or. Jan. 6, 2015)(same).

Dahl v. Comm’r Soc. Sec. Admin., No. 3:14-cv-00904-CL, 2015 WL

7777782, at *1 (D. Or. Dec. 2, 2015)(same).

The Court concludes filing fees are recoverable in

this case as costs under the EAJA pursuant to 28 U.S.C.

§ 2412. The Court also finds Plaintiff's Motion for EAJA fees

was filed within the statutory time following entry of final

Judgment by this Court and following the Mandate of the Ninth

Circuit. Accordingly, the Court concludes Plaintiff's request

for costs is timely.

CONCLUSION

For these reasons, the Court GRANTS Plaintiff's Motion

(#24) for Fees and Expenses Under the Equal Access to Justice

Act and AWARDS fees to Plaintiff of $14,998.51 and costs of

$905.00.

IT IS SO ORDERED.

DATED this 24th day of June, 2021.

___s/ Anna J. Brown_______________

ANNA J. BROWN

United States Senior District Judge

16 - OPINION AND ORDER