Sisemore v. Commissioner of Social Security Administration

D. Arizona

Sisemore v. Commissioner of Social Security Administration

DecidedFebruary 2, 2022

Docket2:18-cv-03211

StatusUnknown

This text of Sisemore v. Commissioner of Social Security Administration (Sisemore v. Commissioner of Social Security Administration) is published on Counsel Stack Legal Research, covering District Court, D. Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sisemore v. Commissioner of Social Security Administration, (D. Ariz. 2022).

Pincite

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 George John Sisemore, No. CV-18-03211-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Pending before the Court is Plaintiff John Sisemore’s Motion for Award of Attorney 17 Fees as Authorized by the Equal Access to Justice Act (the “Motion”). (Doc. 25.) The 18 Commissioner of the Social Security Administration (the “government”) filed an 19 Opposition to the Motion, (Doc. 27), and Plaintiff filed a Reply, (Doc. 30). Neither party 20 requested oral argument, and the Court declines to hold oral argument, finding that it is 21 unnecessary. See LRCiv. 7.2(f). The Court has considered the pleadings and the applicable 22 law and now grants Plaintiff’s Motion. 23 I. BACKGROUND 24 On January 15, 2021, the Court issued an order reversing the ALJ’s decision in this 25 case and remanding the case to the ALJ for further proceedings. (Doc. 23.) In that order, 26 the Court found that the ALJ erred by failing to provide specific, clear and convincing 27 reasons supported by substantial evidence for rejecting Plaintiff’s symptom testimony. (Id. 28 at 9.) Accordingly, the Court reversed and remanded to the ALJ for further proceedings. 1 (Id.) 2 II. LEGAL STANDARD 3 Under the Equal Access to Justice Act (“EAJA”), 4 [A] court shall award to a prevailing party other than the United States fees 5 and other expenses, …. incurred by that party in any civil action (other than 6 cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having 7 jurisdiction of that action, unless the court finds that the position of the 8 United States was substantially justified or that special circumstances make an award unjust. 9 10 28 U.S.C. § 2412(d)(1)(A). “The EAJA creates a presumption that fees will be awarded to 11 the prevailing party.” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995), as amended on 12 denial of reh’g (June 5, 1995). “However, Congress did not intend for fee shifting to be 13 mandatory.” Id. “To show substantial justification for her position, the Secretary has the 14 burden of establishing that her conduct had ‘a reasonable basis both in law and fact.’” Id. 15 at 569–70 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The Ninth Circuit 16 has been clear that when an agency’s decision is unsupported by substantial evidence it is 17 a strong indication that the position of the United States is not substantially justified. 18 Decker v. Berryhill, 856 F.3d 659, 664 (9th Cir. 2017). However, courts in the Ninth 19 Circuit have “never stated that every time a court reverses and remands the ALJ’s decision 20 for lack of substantial evidence the claimant should be awarded attorney’s fees.” Id. 21 (quoting Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir. 2013)). “The position of the 22 United States includes both the government’s litigation position and the underlying agency 23 action giving rise to the civil action.” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) 24 (quoting Meier v. Colvin, 727 F.3d 867, 869–70 (9th Cir. 2013)) (internal quotation marks 25 omitted). Accordingly, if the government’s underlying position was not substantially 26 justified, a court must award fees and need not address whether the government’s litigation 27 position was justified. Id. Specifically, the government must show that its position, on 28 which the district court based its remand, was substantially justified. Lewis v. Barnhart, 1 281 F.3d 1081, 1083 (9th Cir. 2002). 2 III. DISCUSSION 3 A. Substantial Justification 4 The Court reversed and remanded the case because it found that the ALJ failed to 5 provide “specific, clear and convincing” reasons supported by substantial evidence for 6 rejecting Plaintiff’s symptom testimony. (Doc. 23 at 9.) Thus, to avoid paying attorney’s 7 fees under the EAJA, the government must show substantial justification for its position. 8 The government argues that reasonable minds could differ as to the sufficiency of 9 detail provided by the ALJ in explaining her finding regarding Plaintiff’s symptom 10 testimony. (Doc. 27 at 6.) Although the government points out that the Court did not 11 remand as to the first argument of error—that the ALJ erred by rejecting the assessment of 12 Plaintiff’s treating physician—but only the second argument of error, this contention is 13 irrelevant. See Lewis, 281 F.3d at 1083; see also Layton v. Comm’r of the Soc. Sec. Admin., 14 No. CV 13-2635-PHX-MHB, 2017 WL 5158598, at *2 (D. Ariz. Nov. 7, 2017) (“When 15 analyzing the government’s position for substantial justification, the Court’s inquiry should 16 be focused on the issue that was the basis for remand and not the merits of Plaintiff’s claim 17 in its entirety or the ultimate disability determination.”). Thus, the Court will focus only 18 on whether the government has shown substantial justification for its position regarding 19 whether the ALJ erred by rejecting Plaintiff’s symptom testimony without specific, clear, 20 and convincing reasons supported by substantial evidence in the record. 21 Here, the government has failed to show substantial justification for its position. As 22 the Ninth Circuit has stated “it will be only a decidedly unusual case in which there is 23 substantial justification under the EAJA even though the agency’s decision was revered as 24 lacking in reasonable, substantial and probative evidence in the record.” Thangaraja v. 25 Gonzalez, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Al-Harbi v. INS, 284 F.3d 1080, 1084 26 (9th Cir. 2002)) (internal quotation marks omitted). The government has not carried its 27 burden or shown that this is a “decidedly unusual case.” The government argues that 28 reasonable minds could differ as to the sufficiency of detail provided by the ALJ in 1 explaining his symptom testimony finding. But, as the Court noted in its order remanding 2 the case, “[t]he ALJ failed to discuss which aspects of Plaintiff’s testimony were found not 3 credible and instead outlined the medical record without relating it to Plaintiff’s symptom 4 testimony.” (Doc. 23 at 8.) The government’s response does nothing to show that its 5 position was substantially justified regarding this error. Instead, the government merely 6 reiterates that the ALJ properly discounted Plaintiff’s physician’s opinion based on the 7 medical evidence and that reasonable minds could differ regarding the sufficiency of detail 8 provided by the ALJ. The Court disagrees with these contentions. The government fails 9 to explain why its position was substantially justified when the ALJ failed to explain which 10 aspects of Plaintiff’s testimony were found not credible. Accordingly, the Court finds that 11 the government’s position was not substantially justified. 12 B.

Free access — add to your briefcase to read the full text and ask questions with AI

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 George John Sisemore, No. CV-18-03211-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Pending before the Court is Plaintiff John Sisemore’s Motion for Award of Attorney 17 Fees as Authorized by the Equal Access to Justice Act (the “Motion”). (Doc. 25.) The 18 Commissioner of the Social Security Administration (the “government”) filed an 19 Opposition to the Motion, (Doc. 27), and Plaintiff filed a Reply, (Doc. 30). Neither party 20 requested oral argument, and the Court declines to hold oral argument, finding that it is 21 unnecessary. See LRCiv. 7.2(f). The Court has considered the pleadings and the applicable 22 law and now grants Plaintiff’s Motion. 23 I. BACKGROUND 24 On January 15, 2021, the Court issued an order reversing the ALJ’s decision in this 25 case and remanding the case to the ALJ for further proceedings. (Doc. 23.) In that order, 26 the Court found that the ALJ erred by failing to provide specific, clear and convincing 27 reasons supported by substantial evidence for rejecting Plaintiff’s symptom testimony. (Id. 28 at 9.) Accordingly, the Court reversed and remanded to the ALJ for further proceedings. 1 (Id.) 2 II. LEGAL STANDARD 3 Under the Equal Access to Justice Act (“EAJA”), 4 [A] court shall award to a prevailing party other than the United States fees 5 and other expenses, …. incurred by that party in any civil action (other than 6 cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having 7 jurisdiction of that action, unless the court finds that the position of the 8 United States was substantially justified or that special circumstances make an award unjust. 9 10 28 U.S.C. § 2412(d)(1)(A). “The EAJA creates a presumption that fees will be awarded to 11 the prevailing party.” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995), as amended on 12 denial of reh’g (June 5, 1995). “However, Congress did not intend for fee shifting to be 13 mandatory.” Id. “To show substantial justification for her position, the Secretary has the 14 burden of establishing that her conduct had ‘a reasonable basis both in law and fact.’” Id. 15 at 569–70 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The Ninth Circuit 16 has been clear that when an agency’s decision is unsupported by substantial evidence it is 17 a strong indication that the position of the United States is not substantially justified. 18 Decker v. Berryhill, 856 F.3d 659, 664 (9th Cir. 2017). However, courts in the Ninth 19 Circuit have “never stated that every time a court reverses and remands the ALJ’s decision 20 for lack of substantial evidence the claimant should be awarded attorney’s fees.” Id. 21 (quoting Campbell v. Astrue, 736 F.3d 867, 869 (9th Cir. 2013)). “The position of the 22 United States includes both the government’s litigation position and the underlying agency 23 action giving rise to the civil action.” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) 24 (quoting Meier v. Colvin, 727 F.3d 867, 869–70 (9th Cir. 2013)) (internal quotation marks 25 omitted). Accordingly, if the government’s underlying position was not substantially 26 justified, a court must award fees and need not address whether the government’s litigation 27 position was justified. Id. Specifically, the government must show that its position, on 28 which the district court based its remand, was substantially justified. Lewis v. Barnhart, 1 281 F.3d 1081, 1083 (9th Cir. 2002). 2 III. DISCUSSION 3 A. Substantial Justification 4 The Court reversed and remanded the case because it found that the ALJ failed to 5 provide “specific, clear and convincing” reasons supported by substantial evidence for 6 rejecting Plaintiff’s symptom testimony. (Doc. 23 at 9.) Thus, to avoid paying attorney’s 7 fees under the EAJA, the government must show substantial justification for its position. 8 The government argues that reasonable minds could differ as to the sufficiency of 9 detail provided by the ALJ in explaining her finding regarding Plaintiff’s symptom 10 testimony. (Doc. 27 at 6.) Although the government points out that the Court did not 11 remand as to the first argument of error—that the ALJ erred by rejecting the assessment of 12 Plaintiff’s treating physician—but only the second argument of error, this contention is 13 irrelevant. See Lewis, 281 F.3d at 1083; see also Layton v. Comm’r of the Soc. Sec. Admin., 14 No. CV 13-2635-PHX-MHB, 2017 WL 5158598, at *2 (D. Ariz. Nov. 7, 2017) (“When 15 analyzing the government’s position for substantial justification, the Court’s inquiry should 16 be focused on the issue that was the basis for remand and not the merits of Plaintiff’s claim 17 in its entirety or the ultimate disability determination.”). Thus, the Court will focus only 18 on whether the government has shown substantial justification for its position regarding 19 whether the ALJ erred by rejecting Plaintiff’s symptom testimony without specific, clear, 20 and convincing reasons supported by substantial evidence in the record. 21 Here, the government has failed to show substantial justification for its position. As 22 the Ninth Circuit has stated “it will be only a decidedly unusual case in which there is 23 substantial justification under the EAJA even though the agency’s decision was revered as 24 lacking in reasonable, substantial and probative evidence in the record.” Thangaraja v. 25 Gonzalez, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Al-Harbi v. INS, 284 F.3d 1080, 1084 26 (9th Cir. 2002)) (internal quotation marks omitted). The government has not carried its 27 burden or shown that this is a “decidedly unusual case.” The government argues that 28 reasonable minds could differ as to the sufficiency of detail provided by the ALJ in 1 explaining his symptom testimony finding. But, as the Court noted in its order remanding 2 the case, “[t]he ALJ failed to discuss which aspects of Plaintiff’s testimony were found not 3 credible and instead outlined the medical record without relating it to Plaintiff’s symptom 4 testimony.” (Doc. 23 at 8.) The government’s response does nothing to show that its 5 position was substantially justified regarding this error. Instead, the government merely 6 reiterates that the ALJ properly discounted Plaintiff’s physician’s opinion based on the 7 medical evidence and that reasonable minds could differ regarding the sufficiency of detail 8 provided by the ALJ. The Court disagrees with these contentions. The government fails 9 to explain why its position was substantially justified when the ALJ failed to explain which 10 aspects of Plaintiff’s testimony were found not credible. Accordingly, the Court finds that 11 the government’s position was not substantially justified. 12 B. Special Circumstances 13 The EAJA also allows the government to avoid paying attorney’s fees to the 14 prevailing party if “special circumstances make an award unjust.” 28 U.S.C. § 15 2412(d)(1)(A). However, the government does not show or argue that there are special 16 circumstances here which would make an award unjust. Thus, this provision does not 17 prevent an award of attorney’s fees. 18 C. Attorney Fees for Instant Motion 19 Plaintiff also argues that he is entitled to attorney’s fees for preparation of his 20 Motion for Attorney’s fees. (Doc. 30 at 7.) Plaintiff’s counsel requests his hourly rate of 21 $207.78 for 5 hours for the time he spent working his Motion for Attorney’s fees and 22 response ($1,038.90 total). (Doc. 30 at 7–8.) The Court will grant Plaintiff’s request for 23 attorney’s fees incurred while briefing this Motion and its corresponding Reply. 24 /// 25 /// 26 /// 27 /// 28 /// IV. CONCLUSION 2 Accordingly, 3 IT IS ORDERED granting Plaintiffs Motion and awarding attorney’s fees in the 4|| amount of $11,032.79.! (Doc. 25.) 5 Dated this 2nd day of February, 2022. 6 7 — ose 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 || | The Court notes that the government does not contest the amount of attorney’s fees requested. -5-

Cite This Page — Counsel Stack

Bluebook (online)

Sisemore v. Commissioner of Social Security Administration, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sisemore-v-commissioner-of-social-security-administration-azd-2022.

Opinion

Related

Cite This Page — Counsel Stack