United States District Court, D. Arizona
Honorable David C. Bury, United States district judge
March 8, 2018, the Court reversed the final decision of the
Defendant, Nancy A. Berryhill, Acting Commissioner of Social
Security (Commissioner), without a remand for a rehearing and
an award of benefits, (Order (Doc. 15)), with Judgment for
the Plaintiff, (Judgment (Doc. 16)). Accordingly, the
Plaintiff is a prevailing party. 42 U.S.C. § 405(g);
Shalala v. Schaefer, 509 U.S. 292, 296-97 & n.2
(1993). He meets the statutory requirement for an award of
attorney fees because his net worth did not exceed $2, 000,
000 when the civil action was filed. 28 U.S.C. §
2412(d)(2)(B). The purpose of an attorney fee award under the
Equal Access to Justice Act (EAJA) is to enable private
litigants, like the Plaintiff, to afford the expense of
seeking review of unreasonable government action and to
encourage litigants of limited means, like the Plaintiff, to
vindicate their rights. Scarborough v. Principi, 541
U.S. 401, 417 (2004).
is entitled to attorney fees under the EAJA if the
Commissioner's position was not substantially justified.
28 U.S.C. § 2412(d)(1)(B). The Commissioner has the
burden of persuasion to show that her position was
substantially justified, Scarborough, 541 U.S. at
414-15, meaning the Commissioner's position had a
reasonable basis in law and in fact, Pierce v.
Underwood, 487 U.S. 552, 566 n.2 (1988). When
substantial evidence does not support an agency's
decision, only in a decidedly unusual case will the
government's position be substantially justified.
Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir.
2013); Thangaraja v. Gonzales, 428 F.3d 870, 874
(9th Cir. 2005).
described by the Defendant, “the ALJ erred by failing
to articulate legally sufficient reasons for discounting N.P.
Danker's opinion, (Response (doc. 19) at 2-3),
“that ‘even absent the cannabis dependence,'
the Plaintiff's limitations would NOT change, ”
(Order (Doc. 15) at 11). The Defendant frames the error as a
“run-of-the-mill error in articulation insufficient to
make the Commissioner's position unjustified. (Response
(Doc. 19) at 3.)
The Court found the ALJ erred in rejecting N.P. Danker's
opinion because as an “other medical source, ”
the ALJ had to provide germane reasons to reject her
opinions. The Court addressed the ALJ's decision to give
her opinion only “partial weight” because he
found it was “not entirely consistent with the medical
evidence of record.'” (Order (Doc. 15) at 12
(citing AR at 34)). The Court criticized the ALJ's
finding because he “did not identify the medical
evidence of record contrary to N.P. Danker's
opinion.” Id. at 15. “[I[n fact, Dr.
Marks and the two agency psychiatrists all failed ‘to
address the distinctions in the claimant's functioning
with and without substance abuse.'” Id. at
only evidence even mentioned by the ALJ were GAF scores.
Id. The Defendant argues that “although the
Court found that the GAF scores ‘are not substantial
evidence' supporting the ALJ's finding,  they
nevertheless amount to a reasonable basis in fact for that
position.” (Response (Doc. 19) 3-4.) Defendant argues
that the Court specifically found that Plaintiff's GAF
scores “arguably improved” when Plaintiff stopped
using substances, and this amounted to “some
evidence” supporting the Commissioner's position.
Id. at 4.
The Court found “that the mere fact of arguably
improved GAF scores, standing alone, is not a germane reason
for rejecting N.P. Danker's opinion that even absent
cannabis dependence, the Plaintiff's limitations would
not change.” (Order (Doc. 15) at 16.) Even if the Court
considered the GAF score of 60 improved as argued by
Defendant, it and certainly Plaintiff's lesser scores
reflected moderate limitations which satisfy the standard for
a severe impairment at step two of the disability
determination that a claimant's disability has more than
a minimal effect on daily living activities. Id. at
13-14. Hence, the Court's conclusion that the ALJ's
rationale made “no sense, ” id. at 13,
and there was “not substantial evidence to support a
finding that if drug use were stopped the Plaintiff's
remaining limitations would not be severe, ”
id. at 15. The Court found that the ALJ's
decision was based on credibility determinations based on
legally insufficient vague boilerplate rationales.
Id. at 16, n.18.
reviewing its findings and conclusion that the
Commissioner's decision was not supported by substantial
evidence, the Court finds that the agency's decision was
not substantially justified, i.e., it did not have a
reasonable basis in law or fact. The Government has not
carried its burden to challenge an award of attorney fees
under the EAJA for the Plaintiff. There being no objection
from Defendant related to the amount of fees requested by the
Plaintiff, the Court finds the amount requested complies with
the provisions of the EAJA because both the hourly rate and
number of hours related to the attorney fee request are
reasonable. See 28 U.S.C. § 2412(d)(2)(A)
($125.00 per hour is the EAJA statutory rate, enhanced for
the cost-of-living for 2017 is $196.79 and for 2018 is
$200.09), see also (Memo Supporting Motion for
Attorney Fees (Doc. 18), Ex. B and C; Reply (Doc. 20) at 7.)
Joshua Orozco, has moved the Court to award him $8, 411.87 in
attorney fees under the EAJA, 28 U.S.C. § 2412(d).
IT IS ORDERED that the Motion for Attorney
Fees (Doc. 17) is GRANTED.
IS FURTHER ORDERED that Plaintiff is awarded
attorney fees in the amount of $8, 411.87.
IS FURTHER ORDERED that if, after receiving the
Court's EAJA fee order, the Defendant determines upon
effectuation of the Court's EAJA fee order that Plaintiff
does not owe a debt that is subject to offset under the
Treasury Offset Program, the fees will be made payable to
Plaintiffs attorney. However, if there is a debt owed that is
subject to offset under the Treasury Offset Program, the
remaining EAJA fees after offset will be paid by a check made
out to Plaintiff but delivered to Plaintiffs attorney Meghan
IS FURTHER ORDERED that the Clerk of the Court shall