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Robinson v. Commissioner of Social Security

United States District Court, D. Arizona

May 31, 2017

Kimberly Anne Robison, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          ORDER

          Honorable G. Murray Snow United States District Judge

         Pending before the Court is Claimant Kimberly Anne Robison's Application for Attorney Fees under the Equal Access to Justice Act, (Doc. 35).

         I. BACKGROUND

         Robison applied for Social Security benefits. The administrative law judge (ALJ) denied benefits and this Court affirmed. The Ninth Circuit reversed and remanded for further administrative proceedings, ruling that “[t]he ALJ did not provide ‘specific, clear and convincing reasons' for rejecting [the Claimant's] testimony about the severity of her symptoms.” (Doc. 33-1 at 2.) It also noted that the ALJ erred in giving “[n]o weight” to the treating nurse practitioner's opinion as to the extent of the Claimant's disability. (Doc. 33-1 at 4.)

         Robison seeks an award of $20, 987.47 in attorneys' fees and $1, 453.52 in costs under the Equal Access to Justice Act (EAJA). For the reasons set forth below, her application is denied.

         II. THE LAW

         The EAJA provides that “a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . unless the court finds that the position of the United States was substantially justified.” 28 U.S.C. § 2412(d)(1)(a). “Substantial justification means ‘justified in substance or in the main-that is, justified to a degree that could satisfy a reasonable person.'” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “Substantially justified does not mean ‘“justified to a high degree.”'” Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005) (quoting Pierce, 487 U.S. at 565). Rather, “substantially justified means there is a dispute over which ‘reasonable minds could differ.'” Id. (quoting League of Women Voters of Cal. v. FCC, 798 F.2d 1255, 1260 (9th Cir. 1986)). If “a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact, ” then the government's position is substantially justified. Pierce, 487 U.S. at 566 n.2. Both the government's reason(s) for the denial and its basis for defending that denial must be substantially justified. Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001).

         The EAJA's substantial justification standard is not synonymous with the Social Security Act's “substantial evidence” standard. See Pierce, 487 U.S. at 568-69. Nevertheless, the substantial evidence standard is a deferential standard that is similarly defined. “‘Substantial evidence' means . . . such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Meier, 727 F.3d at 872 (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). Thus, this Circuit has held that when it holds that an “agency's decision [is] unsupported by substantial evidence . . . [the holding is] a strong indication that the ‘position of the United States' [is] not substantially justified.” Id. (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)).

         Even so, this Circuit consistently recognizes the distinction between the two standards. See Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir. 2013) (observing that “this circuit has never stated that every time this court reverses and remands the ALJ's decision for lack of substantial evidence the claimant should be awarded attorney's fees.” (emphasis in original)). Indeed, it is proper in the context of a request for attorneys' fees under the EAJA for the district court to consider the government's initial success in the district court in determining whether the government's position is justified to a degree that could satisfy a reasonable person. Meier, 727 F.3d at 873 (citing Lewis v. Barnhart, 281 F.3d 1081, 1084 (9th Cir. 2002)). Such success is evidence that a reasonable person could think that the government's position was correct and thus substantially justified. See, e.g., Putz v. Astrue, 454 F. App'x 632, 632 (9th Cir. 2011) (unpublished) (“Although a majority of the prior panel reversed the Administrative Law Judge's (ALJ) disability ruling and remanded for payment of benefits, the dispute was one in which reasonable minds did differ: the ALJ, the district judge, and a dissenting circuit judge were all convinced that Putz was not disabled.”); see also Saunders v. Astrue, No. CV-08-595-PHX-DGC, 2011 WL 2981772, at *1 (D. Ariz. July 22, 2011) (denying EAJA fees based in part on the fact that the district court affirmed the ALJ's decision). The burden to make this showing, however, belongs to the government. Meier, 727 F.3d at 870.

         In evaluating this request for an award of attorneys' fees under the EAJA, this Court discounts its original views, since reversed, on whether the Government met the substantial evidence standard in denying benefits to the Plaintiff. But, having done so, this Court still finds on re-examination that at least several of the grounds offered by the ALJ for discounting the symptom testimony of the Claimant were substantially justified, even though there was not sufficient evidence to prevail under the substantial evidence standard. [1]

         This Court further finds that, despite the ALJ's error in discounting the opinion evidence of the nurse practitioner in this case, there was substantial justification in both law and in the record for the ALJ to have done so and a substantial basis on which the Government could argue that the decision met the substantial evidence standard.

         Because the Ninth Circuit has directed that the distinction between the substantial justification and the substantial evidence standard is a fine one, and because the Court's application of it results in the denial of attorneys' fees to a party that prevailed in obtaining a reversal and remand, the Court sets forth its reasoning in some detail to facilitate review of its conclusion by the appellate court should such review be sought.

         III. ANALYSIS

         The substantial justification inquiry focuses on the government's position with respect to the issue on which the Court based its remand. Hardisty v. Astrue, 592 F.3d 1072, 1079 (9th Cir. 2010). In its reversal the Ninth Circuit indicated, first, that the ALJ did not provide specific, clear and convincing reasons for rejecting Robison's testimony about the severity of her symptoms. Second, it held that the ALJ erred in not crediting the opinion of the nurse practitioner.

         A. Discounting the Extent of the Claimant's Symptom Testimony

         In this case, the ALJ offered six justifications for discounting the extent of the Claimant's symptom testimony. They are as follows:

         1. The Claimant's Termination During Her Alleged Period of Disability That Was Unrelated to Her Impairments

         Among other reasons for discounting the extent of the Claimant's symptom testimony the ALJ noted: “[t]here is evidence that the claimant stopped working for reasons not related to the allegedly disabling impairments. Specifically, the claimant was fired from her last job.” (R. at 19.) There was in fact evidence that Claimant was fired from a job during the alleged disability period for reasons not related to her allegedly disabling impairments.

         In his opening statement at Claimant's hearing, Claimant's attorney told the ALJ “[s]he got a job at a carwash in early 2010, and the notes at 15F, pages 19 and 20, [2] note she was fired from that job.” (R. at 37.) The notes referenced by the Claimant's attorney to the ALJ are periodic psychiatric progress notes reflecting a consultation between the Claimant and Nurse Practitioner Brandy McLaughlin for March 30, 2010-a short time after the Claimant was fired from the car wash job. Those psychiatric progress notes reflect that the Claimant told NP McLaughlin that she was fired from her job but that she did not know why. (Exhibit No. 15F at 19, R. at 887.) More importantly, those same notes also reflect that the Claimant denied ...


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