United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge
before the Court is Claimant Kimberly Anne Robison's
Application for Attorney Fees under the Equal Access to
Justice Act, (Doc. 35).
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.)
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.
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.
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.
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
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.
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.
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.
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.
Discounting the Extent of the Claimant's Symptom
case, the ALJ offered six justifications for discounting the
extent of the Claimant's symptom testimony. They are as
The Claimant's Termination During Her Alleged Period of
Disability That Was Unrelated to Her Impairments
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
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,  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 ...