Opinion
No. C 11-2096 CRB
09-24-2015
NAOMI MARSH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendants.
ORDER DENYING MOTION FOR ATTORNEY'S FEES
Now before this Court is Petitioner's motion for attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA") following this Court's remand of the case to the Administrative Law Judge ("ALJ") for review consistent with the Ninth Circuit's opinion in favor of Petitioner. See Mot. for Attorney Fees Under the EAJA (dkt. 41); Marsh v. Colvin, 792 F.3d 1170 (9th Cir. 2015); Order Remanding to the ALJ With Instructions (dkt. 48). Plaintiff contends that the government's position was not substantially justified and thus, because she prevailed in the Ninth Circuit, reasonable attorneys fees are to be awarded. Plaintiff's motion for fees is DENIED, as explained below.
I. BACKGROUND
Petitioner filed an application for Social Security Disability Insurance Benefits ("SSDIB") on November 21, 2006, alleging disability beginning October 2, 2001. Administrative Record ("AR") at 89-96. The Commissioner denied Petitioner's application in April 2007 and again upon reconsideration in June 2007. Id. at 60-70. Plaintiff appealed to an Administrative Law Judge ("ALJ"). Id. at 74. The ALJ affirmed. Id. at 13-22. Petitioner filed a civil action in April 2011, see Compl. for Disability Benefits Under the Social Security Act (dkt. 1), and then filed a motion for summary judgment in November 2011. See Plaintiff's Mot. for Summary Judgment and/or Remand (dkt. 18). The Commissioner filed a cross motion for summary judgment. See Defendant's Cross-Mot. for Summary Judgment (dkt. 23). This Court entered judgment in favor of the Commissioner in May 2012. See Judgment (dkt. 28). Plaintiff then filed a motion for reconsideration, which this Court denied. See Mot. for Reconsideration (dkt. 29); Order Denying Mot. for Reconsideration (dkt. 32).
Petitioner appealed to the Ninth Circuit, which reversed. See Plaintiff's Notice of Appeal (dkt. 33); Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (finding that the ALJ's omission of Dr. Betat's notes was not harmless error). Petitioner now requests that the Court grant her motion for attorneys' fees pursuant to the EAJA. See Mot. for Attorney Fees Under the EAJA (dkt. 41).
II. LEGAL STANDARD
A court shall award a prevailing party its fees and expenses in an action against the United States unless "the position of the United States was substantially justified or special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). A position is substantially justified if it is justified to a point that could satisfy a reasonable person, i.e., it has a reasonable basis in law or fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988); see League of Women Voters v. Federal Communications Commission, 798 F.2d 1255, 1260 (9th. Cir. 1986) (stating that when a dispute is one over which reasonable minds could differ, that is evidence that the government's position was substantially justified). In making such a determination, the court must consider the totality of the circumstances, which incorporates both the underlying governmental action and the government's litigation position. See Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988) (noting that the inquiry includes whether both the original action and the defense of the action was substantially justified); see also Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984). The government's failure to prevail does not raise a presumption that its position was not substantially justified. Kali, 854 F.2d at 332. It is the Commissioner's burden to show that her position was substantially justified. Id.
If the government's position was not substantially justified, the next step in the inquiry is to determine whether the fees requested are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). The starting point for this inquiry is "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Id. A reasonable rate is determined by reference to the marketplace. See, e.g., Missouri v. Jenkins, 491 U.S. 274, 285 (1989) (noting that "we have consistently looked to the marketplace as our guide to what is 'reasonable.'").
III. DISCUSSION
After prevailing in the Ninth Circuit, Petitioner alleges that attorneys' fees are warranted under the EAJA because the Commissioner's position was not substantially justified. See Mot. for Attorney Fees Under the EAJA (dkt. 41). Specifically, Petitioner states that "the government's legal positions, in the final administrative decision, in the administrative appeal of that decision, in district court proceedings, and at the Ninth Circuit, were that the findings were supported by substantial evidence, and that there were no significant errors or unsupported findings that flawed the decision under review. Such positions were not substantially justified, nor proper or supported by the record." Id. at 4. The Court disagrees.
Because this Court finds that the government's position was substantially justified and thus attorneys' fees are not warranted under the EAJA, the Court will not address the secondary issue of amount of fees to be awarded. See Mot. for Attorney Fees Under the EAJA (dkt. 41); Defendant's Opp'n to Plaintiff's Mot. for Attorney Fees Under the EAJA (dkt. 45).
The Court must consider the totality of the circumstances in this litigation. At issue are the two main phases of litigation: first, whether the ALJ erred in omitting Dr. Betat's note from his explanation of the denial of Petitioner's SSIB application, and second, whether the omission was harmless error.
The note at issue states that, "she is pretty much nonfunctional" and "appears to be disabled" but cautions that "[i]t seems to be legitimate, although it is sometimes difficult to tell for sure." AR at 498 (emphasis added). --------
First, the Commissioner's defense of the ALJ's omission of Dr. Betat's note was substantially justified. Evidence from a treating physician is given deference, and the ALJ may only reject the opinion of a treating physician if it makes "findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). However, "the opinion of the treating physician is not necessarily conclusive as to either the physical condition or the ultimate issue of disability." Thomas, 278 F.3d at 956 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999)). Thus, "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Id. at 957; see Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (noting that an "ALJ is not required to discuss evidence that is neither significant nor probative.").
The Commissioner contended that Dr. Betat was neither Plaintiff's ongoing treating physician nor providing a medical opinion. See Defendant's Cross-Mot. for Summary Judgment (dkt. 23) at 3-4; see also 20 C.F.R. § 404.1502 (defining "treating physician"). Thus, the Commissioner asserted, the ALJ was not required to explicitly mention statements like those made by Dr. Betat. See Thomas, 278 F.3d at 957. Although this Court found that Dr. Betat was in fact Plaintiff's treating physician, see Order Denying Petitioner's Mot. for Summary Judgment (dkt. 27) at 7, the Court recognized that Dr. Betat's notes "provide[d] minimal additional insight as to Petitioner's condition." See id. at 9; see also 20 C.F.R. § 404.1527(a)(2) (noting that medical opinions must "reflect judgments about the nature and severity of [a claimant's] impairment(s), including . . . symptoms, diagnosis and prognosis.").
The Commissioner's position in defense of the ALJ's ruling had a reasonable basis; a reasonable person could be satisfied that the ALJ, of its own prerogative and based on the lack of substance in Dr. Betat's note, properly determined that the doctor lacked credibility and offered statements that were "brief, conclusory, and inadequately supported by clinical findings." Thomas, 278 F.3d at 957; see Molina v. Astrue, 674 F.3d 1104, 1121-22 (9th Cir. 2012) (stating that "it is the ALJ's prerogative to determine the credibility of witnesses."). On this record, it was reasonable for the Commissioner to argue that Dr. Betat's note was not probative. See Order Denying Petitioner's Mot. for Summary Judgment (dkt. 27) at 9 (stating that, "[w]hile Dr. Betat refers to tenderness, nerve trigger points, sensitivity, and aches and pains, [see AR at 496-508], his notes do not suggest, much less objectively diagnose, additional medical conditions."). Although this Court agreed that the ALJ could have stated its reasoning more explicitly, see Order Denying Petitioner's Mot. for Summary Judgment (dkt. 27) at 8, the Commissioner's failure to prevail on this point does not establish that her position lacked substantial justification. See Kali, 854 F.2d at 332.
Second, the Commissioner was substantially justified in arguing that the ALJ's omission of Dr. Betat's note was harmless error, notwithstanding the Ninth Circuit's recent ruling to the contrary. In fact, this Court ruled in favor of the Commissioner on this point and acknowledged that "[a]lthough the Court found that the ALJ should have acknowledged that Dr. Betat was Petitioner's treating physician at a relevant time, it found that Dr. Betat's SOAP clinical notes simply did not include evidence which would have altered the ALJ's final determination."). See Order Denying Mot. for Reconsideration (dkt. 32) at 3; see also Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006) (explaining that harmless error can be found if a court "can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination."). Dr. Betat's notes did not "reveal a substantially different picture than the one interpreted by the ALJ." See Order Denying Petitioner's Mot. for Summary Judgment (dkt. 27) at 9.
It was reasonable for the Commissioner to contend that the omission of the doctor's opinion was harmless error given the evidence in the record. See Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010) (stating that the government's position "was substantially justified because all of the inferences upon which it rested had substance in the record."). As described above, the note did not add anything of substance to the record. Furthermore, this Court's view that Dr. Betat's note lacked substance lends support to the justification behind the Commissioner's position. See Lewis v. Barnhart, 281 F.3d 1081,1084 (9th Cir. 2002) (stating that the opinion of other judges is evidence as to whether a position is substantially justified, though not dispositive). The fact that the Ninth Circuit reversed on this point is proof that "reasonable minds could differ" and thus, the Commissioner's position was also reasonable. See League of Women Voters, 798 F.2d at 1260.
IV. CONCLUSION
Considering the totality of the circumstances and the evidence in the record, this Court finds that the Commissioner satisfied her burden to show that her position was substantially justified such that attorneys' fees under the EAJA are not warranted. For the foregoing reasons, Petitioner's motion is DENIED.
IT IS SO ORDERED. Dated: September 24, 2015
/s/_________
CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE