United States District Court, D. Arizona
Daniel B. Layton, Plaintiff,
Commissioner of the Social Security Administration, Defendant.
MICHELLE H. BURNS UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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
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
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 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
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 ...