Schiaffino v. Berryhill

UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT SEATTLE MARTIN A. SCHIAFFINO, Case No. C17-5541-RSM Plaintiff, ORDER GRANTING IN PART AND 12 DENYING IN PART PLAINTIFF’S 13 v. MOTION FOR ATTORNEY’S FEES, COSTS AND EXPENSES PURSUANT COMMISSIONER OF SOCIAL TO 28 U.S.C. § 2412 SECURITY, 16 Defendant.

I. INTRODUCTION This matter comes before the Court on Plaintiff Martin A. Schiaffino’s Motion for Attorney Fees, Costs and Expenses pursuant to the Equal Justice Act (“EAJA”), 28 U.S.C. § 21 2412. Dkt. #22. The Government does not oppose Plaintiff’s request for costs and expenses but argues that Plaintiff is not entitled to EAJA fees. Dkt. #24. For the reasons set forth below, the Court finds that Plaintiff’s motion for costs and expenses should be GRANTED and his motion for EAJA fees should be DENIED. // // II. BACKGROUND 2 On June 12, 2015, the Department of Veterans Affairs (“VA”) determined that Plaintiff was unemployable due to disability. Tr. 390. On June 24, 2015, Plaintiff applied for Social Security disability benefits, alleging disability as of March 11, 2015. Tr. 18. Plaintiff’s application was denied initially and on reconsideration. Tr. 84, 95. The Administrative Law Judge (“ALJ”) conducted a hearing on May 11, 2016 and issued a decision finding Plaintiff not disabled for purposes of Social Security. Tr. 18-33.

9 On August 13, 2018, this Court affirmed the Social Security Commissioner’s final decision to deny Plaintiff’s application for disability benefits and dismissed this case with prejudice. Dkt. #14. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed this Court’s decision and remanded to the Commissioner for further proceedings. Dkt. #20. Plaintiff now applies for an award of attorney’s fees, costs and expenses pursuant to EAJA.

15 III. DISCUSSION A. Legal Standard The EAJA provides for an award of attorney’s fees to private litigants who prevail in civil actions (other than tort) against the United States and timely file a petition for fees. 28 U.S.C. § 20 2412(d)(2)(A). Individuals successfully challenging a final decision of the Commissioner denying Social Security disability benefits are among those eligible for such awards. Sullivan v. Hudson, 490 U.S. 877 (1989). Under EAJA, the court must award attorney’s fees to the prevailing party unless it finds the government's position was “substantially justified” or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A).

26 The Commissioner’s position is deemed substantially justified if it meets the traditional standard of reasonableness, meaning it is “justified in substance or in the main, or to a degree that could satisfy a reasonable person.” Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (citations and internal quotations omitted). While the government’s position need not be correct, it must have “‘reasonable basis in law and fact.’” Id. (quoting Pierce v. Underwood, 487 U.S. 4 552, 566 n.2, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). “The government bears the burden of demonstrating substantial justification.” Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (internal quotations omitted). The decision to grant or deny EAJA fees lies within the discretion of the Court. Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995).

9 In considering substantial justification, the Court first considers the underlying agency action, meaning the decision of the ALJ, and then considers the government’s litigation position.

Meier, 727 F.3d at 872. A holding that the agency’s decision was unsupported by substantial evidence is “a strong indication that the ‘position of the United States’ . . . was not substantially justified.’” Id. (quoting Thangaraja, 428 F.3d at 874). Indeed, only in a “decidedly unusual case” will there be “substantial justification under the EAJA even though the agency’s decision was reversed as lacking in reasonable, substantial and probative evidence in the record.”

Thangaraja, 428 F.3d at 874 (internal quotation omitted).

19 Where the government’s underlying position was not substantially justified, the Court “need not address whether the government’s litigation position was justified.” Meier, 727 F.3d 21 at 872 (citing Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008)). In that situation, fees are awarded even if the litigation position of the government may have been justified. Tobeler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014). In considering substantial justification, the Court looks only to whether the “position on the . . . issues that led to remand was not substantially justified.” Id. at 834-35 (quoting Flores, 49 F.3d at 564). // B. Analysis 2 Here, the Ninth Circuit found that the ALJ impermissibly discounted the opinion of examining physician, Dr. Loreli Thompson, and erred by failing to clarify her ambiguous opinion. Dkt. #20 at 2-4. The Ninth Circuit also found that the ALJ impermissibly rejected the VA’s determination that Plaintiff was disabled. Id. at 4-6. The Ninth Circuit otherwise affirmed the decision of this Court and, upon concluding it was not clear benefits were warranted, remanded for further proceedings. Id. at 7. The Commissioner opposes the request for EAJA fees, maintaining substantial justification. Dkt. #24 at 1-3.

This Court concludes that, despite the errors, the ALJ’s decision and the Commissioner’s litigation position on these issues were substantially justified. See Campbell v. Astrue, 736 F.3d 12 867, 869 (9th Cir. 2013) (“[T]his circuit has never stated that every time this court reverses and remands the ALJ’s decision for lack of substantial evidence the claimant should be awarded attorney’s fees.”) (emphasis in original); see also Flores, 49 F.3d at 567 (while the EAJA creates a presumption fees will be awarded to a prevailing party, an award of fees is not mandatory). i. Dr. Thompson’s Opinion 19 Dr. Thompson opined that Plaintiff’s “ability [to] adapt to routine changes in a typical work setting [was] likely to be impacted by reported depressed mood, increased anxiety, low frustration tolerance, difficulty getting along with others, anger, insomnia, and variable mood.”

Tr. 415. The ALJ gave Dr. Thompson’s opinion “minimal weight” because she did not quantify the extent of plaintiff’s “likely” limitation, and her findings were not fully consistent with the medical record. Tr. 30.

26 This Court previously found a reasonable basis for the ALJ to discount Dr. Thompson’s opinion. See Dkt. #14 at 10. It concluded that the ALJ’s duty to further develop the record was not triggered here, given the “years’ worth of treatment records and several medical opinions” that removed any ambiguity as to Plaintiff’s limitations. Dkt. #14 at 10. Likewise, it found that the ALJ reasonably concluded that Dr. Thompson’s findings were inconsistent with the medical record, comparing Dr. Thompson’s descriptions of Plaintiff “leaning forward with his head down facing the ground” with other doctors’ descriptions of Plaintiff’s “good” eye contact and Plaintiff’s description of himself as hypervigilant. Id. at 10-11. The Court found that these observations from other doctors and Plaintiff did not reflect the reported depressed mood and anxiety upon which Dr. Thompson “expressly based” her opinion. Id. at 11.

While a district court’s findings alone do not warrant a denial of EAJA fees, they are “properly considered in addressing substantial justification.” Wheatley v. Berryhill, No. C15- 0059-MAT, 2018 WL 2193131, at *4 (W.D. Wash. May 14, 2018), appeal dismissed, No. 18- 35501, 2018 WL 6579351 (9th Cir. Oct. 24, 2018); see also Meier, 727 F.3d at 873 (court may consider the Commissioner’s success at the district court level); Lewis, 281 F.3d at 1084 (same); Burke v. Colvin, No. C13-05548-BHS, 2016 WL 5846615, at *1, 2016 U.S. Dist. LEXIS 142839 at *4 (W.D. Wash. Sep. 20, 2016) (“If disagreement among reviewing courts regarding the weight of the evidence in the record is insufficient to support a finding of a substantially justified defense, then it seems that there could never be substantial justification for a defense of any error requiring remand.”), aff’d sub nom. Burke v. Berryhill, No. 16-35764, 714 Fed. Appx. 753, 754 (9th Cir. 2018) (“The district court did not improperly reconsider the merits of Burke’s disability claim. It properly focused on the nature and scope of our remand to determine whether both the government’s litigation position and ALJ’s position had a reasonable basis in fact and law.”).

26 Here, this Court’s conclusion that the ALJ provided specific and legitimate reasons for discounting Dr. Thompson’s opinion supports a finding of substantial justification. See Dkt. #14 at 10.

3 As Plaintiff correctly argues, this Court’s previous analysis is not dispositive. Dkt. #25 at 5. Nevertheless, the nature and scope of the Ninth Circuit’s remand on this issue further demonstrate that the Government’s underlying and litigation positions were substantially justified. In finding that the ALJ’s assessment of Dr. Thompson’s opinion failed to comport with the record, the Ninth Circuit highlighted medical records documenting that Plaintiff “often had a ‘tense’ affect, and had ‘minimal eye contact’ with the doctor during multiple visits but sometimes had ‘good’ eye contact.” Id. at 2-3. The Ninth Circuit likewise concluded that the ALJ erred in dismissing Dr. Thompson’s opinion rather than giving her the opportunity to clarify her opinion.

13 Id. at 3-4 (“An ALJ has a duty to develop the record further ‘when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence.’” (quoting Mayes v. Massanari, 276 F.3d 453, 459–60 (9th Cir. 2001)). In effect, while the Ninth Circuit found the overall record ambiguous as to Plaintiff’s limitations, this Court found it “neither ambiguous nor inadequate to allow for proper evaluation of the evidence.” Dkt. #14 at 10.

19 The Court finds that the Ninth Circuit’s remand to clarify Dr. Thompson’s opinion addressed the weight of the evidence more than a procedural defect or violation of rule or law.

See Dkt. #20 at 6. (“The ALJ’s assessment of Schiaffino’s residual functional capacity (“RFC”) may well change once Dr. Thompson’s opinion is clarified and given due consideration . . . .”).

For this reason, the Court finds the Government’s position on this issue substantially justified at each stage of the proceedings. See Putz v. Astrue, No. C08-5290RBL, 2010 WL 3665025, at *1 (W.D. Wash. Sept. 15, 2010) (Denying EAJA fees where “no procedural defect, no violation of rule or law, but rather a fair dispute about the weight to be given evidence which is not disputed”). ii. The VA’s Disability Determination 2 The VA determined that Plaintiff was entitled to “individual employability” based on his post-traumatic stress disorder and obsessive-compulsive disorder symptoms. Tr. 391-92. The ALJ gave the VA’s determination “little weight” on the basis that (1) VA regulations, unlike Social Security regulations, resolve reasonable doubt in a claimant’s favor; and (2) the ALJ independently weighed the evidence and reached a different conclusion from the VA doctors.

8 Tr. 29. This Court rejected the ALJ’s first reason but concluded that the ALJ’s independent review of the evidence constituted a “persuasive, specific, valid reason” to discount the VA’s determination. Dkt. #14 at 7-8. The Ninth Circuit reversed on the basis that the ALJ’s reasons for discounting the VA disability rating were not supported by the record. Dkt. #20 at 4-6.

13 Like its assessment of Dr. Thompson’s opinion, this Court previously found a reasonable basis for the ALJ’s decision to discount the VA’s determination. Specifically, it found persuasive the fact that the VA’s determination failed to “expressly identify a medical opinion on which it relied” and cited only a “VA exam” and treatment notes dated May 18, 2015. Dkt. #14 at 8. It likewise found reasonable the ALJ’s analysis of the May 19, 2015 treatment notes, wherein the ALJ concluded that the notes failed to support a finding of disability for purposes of Social Security. Dkt. #14 at 8 (quoting ALJ’s summary of VA’s treatment notes). These conclusions support a finding of substantial justification. Meier, 727 F.3d at 873.

Moreover, as with Dr. Thompson’s opinion, the Court finds that the nature and scope of the Ninth Circuit’s remand on this issue indicate that the Government’s underlying and litigation positions were substantially justified. The Ninth Circuit determined that the ALJ erred in finding that Plaintiff’s medical record was “inconsistent with disabling mental health limitations” based on Plaintiff’s lack of hospitalization history and number of therapy visits. Dkt. #20 at 4-5. It likewise found that the ALJ erred in viewing Plaintiff’s activities as inconsistent with social and cognitive functioning “limited to the extent that all work would be prohibited,” on the basis that Plaintiff’s activities cited by the ALJ such as daily running, four-wheeling, and a family trip to Disneyland, did not show capacities transferable to a work setting. Id. at 5-6. This Court, in contrast, viewed Plaintiff’s trip to Disneyland as “demonstrating that he is able to handle large crowds of people with the assistance of medication.” Dkt. #14 at 5.

8 Again, the Court finds that the Ninth Circuit’s remand on this issue addressed the weight of the evidence rather than a procedural defect or violation of rule or law. See Dkt. #20 at 6 (“The ALJ’s assessment of Schiaffino’s residual functional capacity (“RFC”) may well change once . . . the VA’s disability determination is given proper weight.”). See Putz, 2010 WL 12 3665025, at *1 (Denying EAJA fees where “fair dispute about the weight to be given evidence which is not disputed”). Accordingly, the Court finds the Government’s underlying and litigation positions on this issue substantially justified.

For these reasons, the Court finds both the underlying and litigation positions of the Commissioner in this case substantially justified. Denial of Plaintiff’s request for EAJA fees is therefore warranted.

20 C. Costs and Expenses Plaintiff also requests costs in the sum of $1,252.40, and expenses in the sum of $111.29.

Dkt. #22 at 1. He has provided a declaration supporting these costs and expenses. Dkt. #22-3 at 2. The Government does not oppose this request. Dkt. #24 at 7. Plaintiff is entitled to these amounts pursuant to 28 U.S.C. § 1920. The Court accordingly GRANTS Plaintiff’s request for costs and expenses. // IV. CONCLUSION 2 For the reasons set forth above, Plaintiff’s motion, Dkt. #22, is GRANTED in part and DENIED in part. Because the Commissioner establishes substantial justification, Plaintiff is not entitled to EAJA fees. Plaintiff is entitled to costs pursuant to 28 U.S.C. § 1920, and is hereby awarded the $1,252.40 in costs and $111.29 in expenses requested. The Clerk shall send copies of this Order to the parties.

9 DATED this 12th day of August, 2020.

11 A 13 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE