Yesipovich v. Colvin

166 F. Supp. 3d 1000, 2015 WL 5675869, 2015 U.S. Dist. LEXIS 130513
CourtDistrict Court, N.D. California
DecidedSeptember 28, 2015
DocketNo. C 15-00112 WHA
StatusPublished
Cited by15 cases

This text of 166 F. Supp. 3d 1000 (Yesipovich v. Colvin) is published on Counsel Stack Legal Research, covering District Court, N.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yesipovich v. Colvin, 166 F. Supp. 3d 1000, 2015 WL 5675869, 2015 U.S. Dist. LEXIS 130513 (N.D. Cal. 2015).

Opinion

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES

William Alsup, United States District Judge

INTRODUCTION

In this social security appeal, plaintiff moves for an order awarding attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. 2412(d). Plaintiff asserts defendant should pay any EAJA fees award directly to her attorney. For the reasons stated below, plaintiffs motion is Granted in Part and Denied in Part.

STATEMENT

The facts have been set forth in a prior order (Dkt. No. 21). Briefly, in November 2011, plaintiff Luba Yesipovich applied for disability benefits. The Social Security Administration denied her application both initially and on reconsideration, so she requested a hearing. At the administrative hearing in 2013, the administrative law judge heard from plaintiff, her counsel, a vocational expert, and a non-examining medical expert. The administrative record contained voluminous medical records, including records from three treating physicians and two examining physicians. The government submitted records from its consulting physicians and psychologists.

The ALJ found that plaintiff was not disabled. The Social Security Administration Appeals Council denied plaintiffs request for review so the ALJ’s decision became final. Plaintiff, via new counsel, sought judicial review of the government’s decision pursuant to Section 405(g) of Title 42 of the United States Code. Plaintiffs motion for summary judgment was granted in part and the action was remanded to the ALJ for further proceedings. Plaintiff now • moves for attorney’s fees and expenses pursuant to the EAJA. Plaintiff seeks $17,048.38 in attorney’s fees and $697.78 in costs. Defendant contends that fees and expenses should not be awarded because it was substantially justified in its conduct and that the requested amount is excessive and unreasonable. This order follows full briefing.

ANALYSIS

1. Entitlement To Fees and Expenses.

The Equal Access to Justice Act provides, in pertinent part, that in order for a fee award to be granted: (1) a party must “prevail” in a civil action, and (2) the government’s position in the action, including the underlying administrative proceedings, must not have been “substantially justified.” 28 U.S.C. 2412(d)(1)(A).

A. Plaintiff Prevailed in a Civil Action.

A party “prevails” for purposes of the EAJA if the denial of its benefits is reversed and remanded, regardless of whether benefits ultimately are awarded. Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir.2001). The government does not dispute that plaintiff was a prevailing party for the purposes of the EAJA. This order finds that plaintiff was the prevailing party.

B. The Government’s Conduct Was Not Substantially Justified.

Under the EAJA, the prevailing party is entitled to attorney’s fees “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). The government bears the burden of proving that [1003]*1003its position, both in the underlying administrative proceedings and in the subsequent litigation, was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir.2013). Our court of appeals has held that this standard is one of reasonableness, and the. government must establish that it “had a reasonable basis both in law and fact” for its conduct. Sampson v. Chater, 103 F.3d 918, 921 (9th Cir.1996).

An April 2015 order granted in part plaintiffs motion for summary judgment and remanded the case back to the ALJ. That order found that the ALJ failed to provide specific and legitimate reasons supported by substantial evidence for rejecting the opinions of plaintiffs treating and examining physicians. The order also found that the ALJ erred in discounting certain aspects of plaintiffs testimony. Although the order reversed several of the ALJ’s findings that were favorable to the government, the government nevertheless argues that its litigation position was substantially justified.

The April 2015 order found the ALJ offered insufficient justification for discounting the conclusions of five physicians who had had direct contact with plaintiff, all of whom found that she was “disabled.” The government cites McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir.2011), for the contention that an ALJ has the authority to disregard the opinions of treating physicians who conclude a plaintiff is “disabled,” as that determination is one reserved for the Commissioner. The ALJ, however, must still have “specific and legitimate reasons that are supported by substantial evidence in the record” for rejecting the opinions of treating and examining physicians. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995).

This order now turns to the government’s proffered justifications for its specific positions in the administrative proceedings and in litigation. Although the government offers several justifications, each of those justifications are based on either a mischaracterization of plaintiffs testimony or a mischaracterization of the medical evidence.

(1) Mischaracterization of Plaintiff’s Testimony.

The April 2015 order found that the ALJ erroneously discounted medical opinions that appeared to rely on plaintiffs subjective statements pertaining to her claims of chronic fatigue syndrome.

In Reddick v. Chater, 157 F.3d 715, 725-26 (9th Cir.1998), our court of appeals concluded that an ALJ’s rejection of two physician opinions (one treating, one consulting) on the “premise that they were based on the subjective complaints of the claimant” was “ill-suited” for the case because the symptom of persistent fatigue is necessarily self-reported in a diagnosis of chronic fatigue syndrome. The conclusion was supported by SSR 99-2p, which is a Social Security Ruling that outlines the importance of self-reported symptoms for a chronic fatigue syndrome diagnosis.

The government argues that neither Reddick nor SSR 99-2p “require[s] an ALJ to automatically credit a claimant’s testimony just because there was also a finding of chronic fatigue syndrome” (Def.’s Opp. At 3). Rather, both the government and the ALJ remained entitled to make specific credibility findings related to chronic fatigue syndrome, and indeed they did make those findings based on testimony that plaintiff cared for herself, prepared meals, did chores, and read. The government argues it was substantially justified in advancing its position on the basis of those findings. Not so.

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Bluebook (online)
166 F. Supp. 3d 1000, 2015 WL 5675869, 2015 U.S. Dist. LEXIS 130513, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yesipovich-v-colvin-cand-2015.