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Layton v. Commissioner of Social Security Administration

United States District Court, D. Arizona

November 7, 2017

Daniel B. Layton, Plaintiff,
v.
Commissioner of the Social Security Administration, Defendant.

          ORDER

          MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Plaintiff Daniel B. Layton's motion for attorney's fees under the Equal Access to Justice Act (“EAJA”) (Doc. 46). After reviewing the arguments of the parties, the Court now issues the following ruling.

         Plaintiff filed an application for supplemental security income in August 2010, alleging disability beginning August 1, 1993. His applications were denied initially and on reconsideration. Plaintiff requested a hearing before an administrative law judge, which was held on May 29, 2012. On August 1, 2012, the ALJ issued a decision finding that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review, and Plaintiff then sought judicial review of the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         This Court, after reviewing the administrative record and the arguments of the parties, affirmed the decision of the ALJ, finding that: (1) the ALJ properly weighed the medical source opinion evidence; (2) the ALJ provided a sufficient basis to find Plaintiff's allegations not entirely credible; and (3) the ALJ set forth a sufficiently specific residual functional capacity assessment of Plaintiff's ability to perform work when the ALJ limited Plaintiff to simple, unskilled work with limited social contact. Thereafter, Plaintiff appealed the Court's decision to the Ninth Circuit Court of Appeals.

         On May 22, 2017, the Ninth Circuit issued its Mandate, finding that the ALJ's decision was not supported by substantial evidence, and remanding this matter back to the district court with instructions to remand to the Commissioner for further proceedings. Specifically, the court found, as follows:

1. The administrative law judge (ALJ) did not provide specific, legitimate reasons for rejecting the opinion of Daniel Layton's treating physician, Dr. Stumpf. See Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). The ALJ merely offered unexplained assertions that the opinions of the state agency physicians were more persuasive than Dr. Stumpf's, and suggested that Dr. Stumpf had improper motives, without citing any evidence of actual impropriety. These do not qualify as specific, legitimate reasons. See Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014); Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995). Absent such reasons, the ALJ should have credited Dr. Stumpf's opinion over those of the nonexamining state agency physicians. See Garrison, 759 F.3d at 1012. The failure to do so was error.
2. The ALJ's hypothetical questions to the vocational expert did not capture Layton's limitations in the areas of concentration, persistence, and pace. See Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001). Substantial evidence, such as the opinions of the state agency physicians, supported inclusion of these limitations in Layton's residual functional capacity. The ALJ therefore erred by not including them in the hypothetical.
3. Although the ALJ cited the applicable two-step test for assessing the credibility of a claimant's subjective symptom testimony, he did not apply that test correctly. See Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). First, an ALJ must determine whether the claimant's diagnosed impairments could reasonably be expected to produce the symptoms alleged. Id. at 1036. Second, if the first step is satisfied and there is no evidence of malingering, the ALJ can reject the claimant's symptom testimony only on the basis of specific, clear, and convincing reasons supported by substantial evidence. Id.
Here, the ALJ concluded that Layton's impairments could reasonably be expected to cause only some of his alleged symptoms, but did not specify which symptoms he was referencing. The ALJ then concluded that Layton's limitations were not as disabling as alleged because Layton's hobbies included reading, watching television and movies, and playing video games. These activities require significantly less concentration, stamina, memory, and interpersonal skills than the jobs identified by the vocational expert. Layton's hobbies are not clear and convincing reasons for rejecting his symptom testimony, especially because the ALJ failed to specify which symptoms could reasonably be caused by Layton's impairments. See Burrell v. Colvin, 775 F.3d 1133, 1137-38 (9th Cir. 2014).

         The 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, 300-02 (1993).

         The “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).

         When 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.”).

         Plaintiff moves for an award of attorney's fees under the EAJA in the amount of $23, 654.38. Defendant opposes Plaintiff's request, arguing that the government's position was substantially justified. Further, the government contends that, if payable, the amount of fees requested by Plaintiff is unreasonable.

         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 ...


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