IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JOHN FRANKLIN WILLIAMS, 

Plaintiff, 

v. 

COMMISSIONER, SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

CLARKE, Magistrate Judge. 

Civ. No. 6:14-cv-01419-CL 

REPORT& 

RECOMMENDATION 

Plaintiff John Williams ("Plaintiff') moves the Court for an award of $6,127.04 in 

attorney's fees under the Equal Access Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Defendant 

Commissioner of the Social Security Administration (the "Commissioner") opposes Plaintiffs 

motion. Having reviewed the record and considered the specifics of this case, the Court finds that 

Plaintiff is entitled to his full request. His motion (#21) should be GRANTED. 

BACKGROUND 

On September 3, 2014, Plaintiff filed a Complaint (#1) to obtain judicial review of the 

final decision of the Commissioner of the Social Security Administration ("Commissioner") 

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denying his application for Supplemental Security Income Benefits ("SSI") under Title XVI of 

the Social Security Act. On September 22, 2015, this Court reversed (# 19) the Commissioner's 

decision and remanded for further administrative proceedings. The Court instructed the 

Commissioner's Administrative Law Judge ("ALI") to determine (1) whether Plaintiff could 

perform any of the jobs identified if his concentration, persistence, and pace were moderately 

impaired; and (2) whether Plaintiff met Medical Vocational Guidelines as of his 55th birthday. 

On November 20, 2015, Plaintiffs attorney filed an application (#21) for EAJA fees. The 

Commissioner asks (#22) the Comito deny Plaintiffs motion in its entirety. 

LEGAL STANDARD 

A prevailing party in an action against the United States is entitled to an award of 

attorney's fees and costs under the EAJA unless the government demonstrates that its position in 

the litigation was "substantially justified" or that "special circumstances make an award unjust." 

28 U.S.C. § 2412(d)(l)(A). An EAJA fee award must be reasonable. Sorenson v. Mink, 239 F.3d 

1140, 1145 (9th Cir. 2001 ). In determining whether a fee is reasonable, the Court considers the 

hours expended, the reasonableness of the hourly rate charged, and the results obtained. Hensley 

v. Eckerhart, 461 U.S. 424, 434 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998) 

(applying Hensley to cases involving the EAJA). If the requested fees are not shown to be 

reasonable, then the Court may reduce the award. See Hensley, 461 U.S. at 433; Atkins, 154 F.3d 

at 988. 

DISCUSSION 

It is undisputed that Plaintiff is a prevailing party. Gutierrez v. Barnhart, 274 F.3d 1255, 

1257 (9th Cir. 2001) ("An applicant for disability benefits becomes a prevailing party for the 

purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of 

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whether disability benefits ultimately are awarded."). Accordingly, the Court should award his 

fee request if it finds (1) the government has neither shown that its position was "substantially 

justified" nor demonstrated that special circumstances render the requested award unjust, and (2) 

the requested fees are reasonable. 28 U.S.C. § 2412(d)(l)(A); Perez-Arellano v. Smith, 279 F.3d 

791, 793 (9th Cir. 2002). 

The Commissioner contends that its position was "substantially justified." In opposing an 

EAJA fee request on this basis, the Commissioner bears the burden of establishing it was 

"substantially justified" both (1) in taking its original action and (2) defending the validity of that 

action in court. Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998); Kali v. Bowen, 854 F.2d 

329, 332 (9th Cir. 1988). The Supreme Court defines "substantially justified" to mean "justified 

in substance or in the main," in other words, "justified to a degree that could satisfy a reasonable 

person." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal citations omitted). A position 

can be substantially justified even though it is incorrect so long as it has "a reasonable basis in 

law and fact." Jd. at 566 n.2. This standard is met if there is a "genuine dispute." Jd. at 565. 

Here, the primary issue before the Court was whether the ALJ adequately addressed 

Plaintiff's moderate impairments in concentration, persistence, or pace by restricting him to 

simple, repetitive tasks. The Court noted that the Ninth Circuit has been "somewhat inconsistent" 

on this issue, but recently "affirmed" the inadequacy of such restrictions in Brink v. Comm 'r Soc. 

Sec. Admin, 599 F.App'x 657 (9th Cir. 2015). In Brink, the Ninth Circuit reasserted its previous 

holding that an ALJ failed to capture a claimant's moderate impairments in concentration, 

persistence, or pace when the ALJ restricted the claimant to simple, repetitive tasks. Id. at 657-

58. 

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The Commissioner dismisses Brink as "unpublished dicta." Def.'s Resp., at 3. It asserts 

that, in the absence of any controlling Ninth Circuit or Supreme Court case law, its position was 

reasonable. The Court disagrees. The Brink opinion is directly on point. The Court cited the 

opinion's holding, not dicta. To the extent that Brink's authority is lessened by its presence in the 

Federal Appendix, the Court notes that district com1s "routinely cite non-binding opinions for 

persuasive reasoning, and such citations do not foreclose an award of attorney fees." Marcus v. 

Colvin, No. 6:13-CV-01009-AA, 2014 WL 5488924, at *3 (D. Or. Oct. 28, 2014) (citing Bailey 

ex ref. Pace v. Colvin, 3:12-CV-01092-BR, 2013 WL 6887158, *3 (D. Or. Dec. 31, 2013) 

(attorney fee award and underlying opinion based on non-binding district court opinions); 

Hodgson v. Astrue, 2012 WL 786352, *3 (D. Or. Feb. 16, 2012), repo11 and recommendation 

adopted, 2012 WL 786943 (D. Or. Mar. 9, 2012) (granting attorney fees after relying on nonbinding district court cases); Irwin v. Astrue, 2011 WL 2619503 (D.Or. July 1, 2011)). The 

Commissioner does not cite to any case law to contradict Brink's holding or to otherwise support 

the legal basis of its position. It does not advance any other arguments to meet its burden of 

establishing legal reasonableness. Its opposition to Plaintiffs fee request should, therefore, fail. 

The Commissioner does not object to the amount of attorney fees requested by Plaintiff. 

However, the Court has reviewed Plaintiffs petition and supporting documentation, and 

confirmed its reasonableness. Plaintiff is entitled to an EAJA fee award of $6,127 .04. 

Plaintiff assigned any EAJA fees to his attorney. Pl.'s Mot, Ex. A. Therefore, the amount 

of this award shall be paid to Plaintiffs attorney upon verification that Plaintiff has no debt, 

which qualifies for offset against the award pursuant to the Treasury Offset Program. See Astrue 

v. Ratlifj; 560 U.S. 586, 589 (20 10). If Plaintiff has no such debt, then a check shall be made out 

to Plaintiffs attorney, and mailed to Plaintiffs attorney. If Plaintiff has a debt, then a check for 

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the remaining funds, after any offset of the debt, shall be made to Plaintiff and mailed to 

Plaintiffs attorney. 

RECOMMENDATION 

For the reasons set forth above, Plaintiffs motion (#21) for attorney's fees in the amount 

of$6,127.04 should be GRANTED. 

This Report and Recommendation will be referred to a district judge. Objections, if any, 

are due no later than fourteen (14) days after the date this recommendation is filed. If objections 

are filed, any response is due within fourteen (14) days after the date the objections are filed. See 

Fed. R. Civ. P. 72, 6. Parties are advised that the failure to file objections within the specified 

time may waive the right to appeal the District Court's order. Jvfartinez v. Ylsr, 951 F.2d 1153 

(9th Cir. 1991 ). 

yMARK D. CLARKE 

United States Magistrate Judge 

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