Tacas v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 11/29/11 ORDERING that plaintiff's motion for attorney fees is denied. (Becknal, R)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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TEODITA V. TACAS,
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Plaintiff,
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No. CIV 09-2144 EFB
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
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Defendant.
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ORDER
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Pending before the court is plaintiff’s motion for an award of attorney fees under the
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Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1). Plaintiff seeks fees based on 2.1
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hours in 2009 at the rate of $172.24 per hour for attorney time, 24.05 hours in 2010 at the rate of
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$174.64 per hour, and 1.75 hours in 2011 at the rate of $174.64 per hour, for a total amount of
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$4,867.41. Dckt. No. 25-2. Defendant contends that (1) plaintiff is not entitled to EAJA fees
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since defendant’s position was substantially justified, and (2) any EAJA fee award should be
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made payable to plaintiff and not to plaintiff’s counsel. Dckt. No. 26. The court denies
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plaintiff’s motion for fees because defendant’s position was substantially justified.
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The EAJA provides that a prevailing party other than the United States should be
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awarded fees and other expenses incurred by that party in any civil action brought by or against
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the United States, “unless the court finds that the position of the United States was substantially
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justified or that special circumstances make an award unjust directs the court to award a
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reasonable fee.” 28 U.S.C. § 2412(d)(1). “[T]he ‘position of the United States’ means, in
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addition to the position taken by the United States in the civil action, the action or failure to act
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by the agency upon which the civil action is based.” Gutierrez v. Barnhart, 274 F.3d 1255, 1259
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(9th Cir. 2001) (citing 28 U.S.C. § 2412(d)(2)(D) and Comm’r, INS v. Jean, 496 U.S. 154, 159
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(1990) (explaining that the “position” relevant to the inquiry “may encompass both the agency’s
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prelitigation conduct and the [agency’s] subsequent litigation positions”)). Therefore, the court
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“must focus on two questions: first, whether the government was substantially justified in taking
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its original action; and, second, whether the government was substantially justified in defending
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the validity of the action in court.” Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). The
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burden of establishing substantial justification is on the government. Gutierrez, 274 F.3d at
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1258 (9th Cir. 2001).
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A position is “substantially justified” if it has a reasonable basis in law and fact. Pierce
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v. Underwood, 487 U.S. 552, 565-66 (1988); United States v. Marolf, 277 F.3d 1156, 1160 (9th
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Cir. 2002). Substantially justified has been interpreted to mean “justified to a degree that could
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satisfy a reasonable person” and “more than merely undeserving of sanctions for frivolousness.”
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Underwood, 487 U.S. at 565; see also Marolf, 277 F.3d at 161. The mere fact that a court
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reversed and remanded a case for further proceedings “does not raise a presumption that [the
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government’s] position was not substantially justified.” Kali, 854 at 335; see also Lewis v.
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Barnhart, 281 F.3d 1081, 1084-86 (9th Cir. 2002) (finding the defense of an ALJ’s erroneous
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characterization of claimant’s testimony was substantially justified because the decision was
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supported by a reasonable basis in law, in that the ALJ must assess the claimant’s testimony and
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may use that testimony to define past relevant work as actually performed, as well as a
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reasonable basis in fact, since the record contained testimony from the claimant and a treating
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physician that cast doubt on the claimant’s subjective testimony); Le v. Astrue, 529 F.3d 1200,
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1201-02 (9th Cir. 2008) (finding that the government’s position that a doctor the plaintiff had
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visited five times over three years was not a treating doctor, while incorrect, was substantially
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justified since a nonfrivolous argument could be made that the five visits over three years were
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not enough under the regulatory standard especially given the severity and complexity of
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plaintiff’s alleged mental problems).
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However, when the government violates its own regulations, fails to acknowledge settled
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circuit case law, or fails to adequately develop the record, its position is not substantially
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justified. See Gutierrez, 274 F.3d at 1259-60; Sampson v. Charter, 103 F.3d 918, 921-22 (9th
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Cir. 1996) (finding that the ALJ’s failure to make necessary inquiries of the unrepresented
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claimant and his mother in determining the onset date of disability, as well as his disregard of
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substantial evidence establishing the same, and the Commissioner’s defense of the ALJ’s
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actions, were not substantially justified); Flores v. Shalala, 49 F.3d 562, 570, 572 (9th Cir. 1995)
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(finding no substantial justification where ALJ ignored medical report, both in posing questions
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to the VE and in his final decision, which contradicted the job requirements that the ALJ deemed
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claimant capable of performing); Corbin v. Apfel, 149 F.3d 1067, 1053 (9th Cir. 1998) (finding
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that the ALJ’s failure to determine whether the claimant’s testimony regarding the impact of
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excess pain she suffered as a result of her medical problems was credible, and whether one of her
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doctors’ lifting restrictions was temporary or permanent, and the Commissioner’s decision to
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defend that conduct, were not substantially justified); Crowe v. Astrue, 2009 WL 3157438, *1
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(E.D. Cal. Sept. 28, 2009) (finding no substantial justification in law or fact based on ALJ’s
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improper rejection of treating physician opinions without providing the basis in the record for so
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doing); Aguiniga v. Astrue, 2009 WL 3824077, *3 (E.D. Cal. Nov. 13, 2009) (finding no
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substantial justification in ALJ’s repeated mischaracterization of the medical evidence, improper
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reliance on the opinion of a non-examining State Agency physician that contradicted the clear
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weight of the medical record, and improperly discrediting claimant’s subjective complaints as
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inconsistent with the medical record).
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This court granted plaintiff’s motion for summary judgment in part. The court found for
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defendant on the first issue–the ALJ’s rejection of medical opinions–but found that the ALJ
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erred in accepting the Vocational Expert’s testimony that plaintiff could perform jobs requiring
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language level and reasoning level two, even though plaintiff was illiterate in English and was
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therefore precluded from performing those jobs under the Dictionary of Occupational Titles
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definitions. Dckt. No. 23 at 4-8, 9-10.
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Although this court found that this was error, another district court presented with similar
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facts came to the opposite conclusion. See Meza v. Astrue, 2011 WL 11499, *21 (N.D. Cal.
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January 4 2011). In Meza, the court found that the ALJ properly relied upon the VE’s testimony
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that the plaintiff could perform jobs with reasoning level two and language level one, even
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though the plaintiff was illiterate and did not speak English. Id. The court reasoned that
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plaintiff’s illiteracy was fully addressed by the separate variable of the language requirement. Id.
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As another district court has accepted the position that defendant advanced in this case,
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defendant’s position had a reasonable basis in law and fact and was substantially justified.
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Plaintiff argues that defendant violated its own regulations by denying plaintiff benefits
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on the grounds that she could perform a job with the reasoning level of two, despite her
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illiteracy. But as Meza demonstrates, the regulations are susceptible to multiple interpretations.
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Although this court rejected defendant’s interpretation of the regulations, that interpretation had
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a basis in fact and law.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for attorney fees is
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denied.
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Dated: November 29, 2011.
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