United States District Court, D. Arizona
Michelle H. Burns United States Magistrate Judge
before the Court is Plaintiff Tamara Demia Jones' motion
for attorney's fees under the Equal Access to Justice Act
(“EAJA”) (Doc. 19). After reviewing the arguments
of the parties, the Court now issues the following ruling.
filed applications for disability insurance benefits and
supplemental security income alleging disability beginning
January 1, 2007. Her applications were denied initially and
on reconsideration. Plaintiff requested a hearing before an
administrative law judge. A hearing was held on June 16,
2014, and the ALJ issued a decision finding that Plaintiff
was not disabled. The Appeals Council denied Plaintiff's
request for review, making the ALJ's decision the final
decision of the Commissioner. Plaintiff then sought judicial
review of the ALJ's decision pursuant to 42 U.S.C. §
Court, after reviewing the administrative record and the
arguments of the parties, vacated the Commissioner's
decision and remanded this matter to the Commissioner for
further administrative proceedings. (Doc. 17.) Specifically,
the Court found that although “the ALJ properly weighed
the medical source opinion evidence related to
Plaintiff's physical impairments, and gave specific and
legitimate reasons, based on substantial evidence in the
record, for discounting Dr. Sayegh's opinion, ” the
Court determined that the ALJ erred in her mental residual
functional capacity assessment. Specifically, the Court
concluded that the ALJ failed to provide specific, legitimate
reasons based on substantial evidence in the record for
giving reduced weight to Dr. Potter's opinion. The Court
the ALJ did not mention the opinions or treatment record of
psychological consultants Alvin Smith, Ph. D., and Stephen
Fair, Ph. D. (Tr. at 20-39.) Dr. Potter is the only source in
the record whose opinion the ALJ discussed or weighed. The
ALJ did not discuss or indicate what degree of weight she
afforded to the opinions of Dr. Smith (Tr. at 84-85), and Dr.
Fair (Tr. at 104-05). Even if the non-examining opinions
support the ALJ's decision, the ALJ has not provided any
explanation whether the evidence supports those opinions
sufficiently for the ALJ to properly rely on them. See
Garrison v. Colvin, 795 F.3d 995, 1012 (9th Cir. 2014)
(noting differences in treatment of opinions from different
sources and indicating that “the opinion of an
examining physician is entitled to greater weight than that
of a non-examining physician”); Bain v.
Astrue, 319 Fed.Appx. 543, 546 (9th Cir.
2009)(“Evidence from state agency consultant physicians
must be treated as ‘expert opinion evidence;' thus,
the ALJ ‘may not ignore these opinions and must explain
the weight given to these opinions in their
decisions'”) (quoting SSR 96-6p). Additionally, the
justification for the rejection that was given by the ALJ was
not supported by substantial evidence. Instead, the ALJ gave
reduced weight because it was inconsistent with
Plaintiff's poor effort during the examination as well as
Plaintiff's general lack of mental health treatment and
unremarkable mental status examinations during routine office
visits. (Tr. at 33.) The focus on Plaintiff's poor effort
during the examination ignored evidence to the contrary. An
ALJ is not permitted to rely on evidence supporting her
conclusions while ignoring evidence contrary to those
conclusions. See Maydanis v. Colvin, 119 F.Supp.3d
969, 976 (D. Ariz. 2015); Provencio v. Astrue, 2012
U.S. Dist. LEXIS 85294, at *48 (D. Ariz., June 20, 2012)
(finding “[i]t was improper for the ALJ to selectively
reference plaintiff's treatment records to support her
conclusion, while ignoring other treatment records
contradicting that conclusion”). Moreover, the lack of
formal mental health treatment cannot serve as evidence that
mental health issues are not disabling. See Rivera v.
Colvin, 2013 U.S. Dist. LEXIS 161035, *9-10 (D. Or.,
Nov. 12, 2013).
EAJA allows “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 or that
special circumstances make an award unjust.” 28 U.S.C.
§ 2412(d)(1)(A). 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 are ultimately
awarded. See Shalala v. Schaefer, 509 U.S. 292,
“position of the United States” includes both its
litigating position and the “action or failure to act
by the agency upon which the civil action is based.” 28
U.S.C. § 2412(d)(2)(D). For this position to be
substantially justified, it must be “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) (holding that
substantially justified means having a reasonable basis both
in law and fact). In EAJA actions, the government bears the
burden of proving that its position was substantially
justified. See Gonzales v. Free Speech Coalition,
408 F.3d 613, 618 (9th Cir. 2005). However, “the
government's failure to prevail does not raise a
presumption that its position was not substantially
justified.” Kali v. Bowen, 854 F.2d 329, 332
(9th Cir. 1988).
analyzing the government's position for substantial
justification, the Court's inquiry should be focused on
the issue that was the basis for remand and not the merits of
Plaintiff's claim in its entirety or the ultimate
disability determination. See Flores v. Shalala, 49
F.3d 562, 569 (9th Cir. 2008); see also Corbin v.
Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (“The
government's position must be substantially justified at
each stage of the proceedings.”).
moves for an award of attorney's fees and costs under the
EAJA in the amount of $5, 064.43. Defendant opposes
Plaintiff's request, arguing that the government's
position was substantially justified. It is undisputed that
Plaintiff is the prevailing party. Therefore, the issue
before the Court is whether Defendant's position in
opposing Plaintiff's appeal was “substantially
justified.” Shafer v. Astrue, 518 F.3d 1067,
1071 (9th Cir. 2008). Having reviewed the
parties' pleading and the record in this matter, the
Court concludes that Defendant's decision to defend the
ALJ's determination was not substantially justified.
response, Defendant argues that the Commissioner was
substantially justified in defending the ALJ's rationale
that Plaintiff's poor effort undermined Dr. Potter's
opinion. Defendant states that there was a reasonable basis
in fact because “there is no dispute that Dr. Potter
specifically found (1) Jones exhibited ‘low to
moderate' effort on testing, ... and (2) ‘[b]ased
on [Jones's] varied level of effort and motivation, the
results should be viewed with caution, ' ....”
stated previously, however, one of the reasons for remand was
that the ALJ failed to consider all of the evidence - instead
focusing merely on Plaintiff's “poor effort”
during examination. The Court specifically stated:
Additionally, the justification for the rejection that was
given by the ALJ was not supported by substantial evidence.
... The focus on Plaintiff's poor effort during the
examination ignored evidence to the contrary. An ALJ is not
permitted to rely on evidence supporting her conclusions
while ignoring evidence contrary to those conclusions.
See Maydanis v. Colvin, 119 F.Supp.3d 969, 976 (D.
Ariz. 2015); Provencio v. Astrue, 2012 U.S. Dist.
LEXIS 85294, at *48 (D. Ariz., June 20, 2012) (finding
“[i]t was improper for the ALJ to selectively reference
plaintiff's treatment records to support her conclusion,
while ignoring other treatment records contradicting that
it was improper for the ALJ to selectively reference evidence
supporting her conclusions, while ignoring other records
contradicting that conclusion. See Gallant v.
Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)
(stating that it is error for an ALJ to ignore or misstate
the competent evidence in the record in order to justify her
conclusion); Day v. Weinberger, 522 F.2d 1154, 1156
(9th Cir. 1975) (stating that an ALJ is not
permitted to reach a conclusion “simply by isolating a
specific quantum of supporting evidence”); Whitney
v. Schweiker, 695 F.2d 784, 788 (7th Cir.
1982) (“[A]n ALJ must weigh all the evidence and may
not ignore evidence that suggests an opposite
conclusion.”) (citation omitted).
also argues that the Commissioner was substantially justified
in defending the ALJ's rationale that Plaintiff's
lack of treatment undermined Dr. Potter's opinion.
Defendant states that an ALJ ...