UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

TIMOTHY LEE WINTON,

Plaintiff,

v. 

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-00465-KI

OPINION AND ORDER

Nancy J. Meserow

Law Office of Nancy J. Meserow

7540 SW 51st Ave.

Portland, OR 92219

Attorney for Plaintiff

Billy J. Williams

Acting United States Attorney

District of Oregon

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Janice E. Hebert

Assistant United States Attorney

1000 SW Third Ave., Ste. 600

Portland, OR 97204-2902

Erin F. Highland

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

701 Fifth Ave., Ste. 2900 M/S 221A

Seattle, WA 98104-7075

Attorneys for Defendant

KING, Judge:

Plaintiff Timothy Winton brought an action pursuant to section 205(g) of the Social

Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the

Commissioner denying plaintiff’s application for disability insurance benefits (“DIB”) as well as

supplemental security income (“SSI”). I reversed the decision of the Commissioner and

remanded for the ALJ to further develop the record.

Pending before me is plaintiff’s counsel’s Motion for Fees Under the Equal Access to

Justice Act (“EAJA”). For the following reasons, I grant the motion and award Winton’s

attorney $13,178.32 in attorney’s fees and $15.00 in costs, for a total of $13,193.32.

LEGAL STANDARDS

The EAJA provides that the court shall award attorney fees and expenses to a prevailing

party in any civil action brought by or against the United States unless the court finds that the

government’s position was substantially justified or that special circumstances make an award

unjust. 28 U.S.C. § 2412(d)(1)(A). The test for determining whether the government was

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substantially justified is whether its position had a reasonable basis both in law and fact. Pierce

v. Underwood, 487 U.S. 552, 565 (1988); Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995). 

The burden is on the government to prove substantial justification. Flores, 49 F.3d at 569. In

evaluating the government’s position, the court must look at both the underlying government

conduct and the positions taken by the government during the litigation. Meier v. Colvin, 727

F.3d 867, 870 (9th

 Cir. 2013). If the underlying agency action was not substantially justified, the

court need not consider whether the government’s litigation position was substantially justified.

Id. at 872.

“The government’s failure to prevail does not raise a presumption that its position was

not substantially justified.” Kali v. Bowen, 854 F.2d 329, 334 (9th Cir. 1988). However, a

finding that the agency decision was not supported by substantial evidence is a “strong

indication” that the government’s position was not substantially justified. Thangaraja v.

Gonzales, 428 F.3d 870, 874 (9th Cir. 2005). “Indeed, it will be only a ‘decidedly unusual case in

which there is substantial justification under the EAJA even though the agency’s decision was

reversed as lacking in reasonable, substantial and probative evidence in the record.” Id. (quoting

Al-Harbi v. INS, 284 F.3d 1080, 1085 (9th Cir. 2002)); Meier, 727 F.3d at 872 (same). 

BACKGROUND

The ALJ issued her decision without the benefit of the April 2014 opinion of psychologist

Mark G. Dillon, Ph.D., because the ALJ did not have records beyond March 20, 2014. The

Commissioner argued Dr. Dillon’s opinion, which Winton presented to the Appeals Council, did

not undermine the substantial evidence supporting the ALJ’s decision because Dr. Dillon

improperly relied on Winton’s complaints and did not support his opinion with his own

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observations. Winton, in turn, argued VA records and the doctor’s own observations supported

the doctor’s opinion. I commented that both the Commissioner and Winton made “valid

arguments that must be properly weighed by the ALJ” and that the ALJ should resolve the

conflict about whether Winton could still perform the jobs identified by the ALJ. Op. and Order

16-17. I also pointed out a remand “is especially appropriate here given the ALJ’s findings on

Winton’s moderate limitation in social functioning, concentration, persistence and pace–findings

which appear to be consistent with Dr. Dillon’s opinion that Winton should limit his interactions

with others and be supervised at work.” Id. at 17. In the end, I concluded Dr. Dillon’s opinion

meant the ALJ’s RFC was no longer supported by substantial evidence. I instructed the ALJ to

consider Dr. Dillon’s opinion and, if she did not accept the opinion, clarify how her RFC was

consistent with her findings on Winton’s moderate limitations in social functioning,

concentration, persistence and pace.

In addition, since I reversed and remanded for the ALJ to consider Dr. Dillon’s opinion, I

also directed her to reconsider her determination about the severity of Winton’s depression.

Similarly, I directed the ALJ to evaluate the severity of Winton’s sleep apnea, diagnosed in

October 2014 after the date of the decision. Tr. 2100. In addition, I directed her to reconsider

her conclusion about Winton’s need for a cane as of November 2013.

DISCUSSION

I. Availability of Fees Under EAJA

Winton is the prevailing party in this action. However, the Commissioner insists that

both the underlying decision was “substantially justified,” as was her position in defense of the

underlying decision, findings which would preclude Winton’s request for fees under the EAJA. 

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Accordingly, the question is whether the government met its burden of showing (a) its litigation

position and (b) the agency decision were “substantially justified.” 28 U.S.C. § 2412(d)(1)(A).

The Commissioner contends weaknesses in Dr. Dillon’s opinion, such as over-reliance on

Winton’s subjective complaints and an inconsistency with the overall medical record, rendered it

unpersuasive. To the contrary, the medical records contained sufficient evidence of depression

and its effects on his functionality that the Appeals Council’s failure to remand for consideration

of Dr. Dillon’s opinion was not reasonably justified. See Tr. 1195 (describing personality insight

issues); Tr. 1179 (tangential and incoherent speech; not intoxicated); Tr. 1180 (social worker

declined to refer Winton to VA’s compensated work therapy program as he was not “readily

employable”); Tr. 1066 (tested negative for amphetamines during this time period); Tr. 1638

(tangential speech); Tr. 2072 (Dr. Dillon’s report identified objective evidence of problematic

functioning such as his long, detailed responses beyond the scope of the question and lack of eye

contact). 

Additionally, as I pointed out in the February 1, 2016 Opinion and Order, despite

identifying moderate limitations in Winton’s social functioning, concentration, persistence and

pace, the ALJ neglected to assess corresponding effects on Winton’s RFC. With the

corroboration of Dr. Dillon’s opinion to support the ALJ’s conclusion about Winton’s moderate

limitations in social functioning, concentration, persistence and pace, I found remand “especially

appropriate[.]” O&O at 17.

Since the government’s underlying position was not substantially justified, I need not

discuss the validity of the government’s litigation position. Meier, 727 F.3d at 872-73. 

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In sum, I find the Commissioner has failed to meet her burden in showing the Appeals

Council’s decision was substantially justified, and I conclude this is not the unusual case

warranting a denial of EAJA fees. 

II. Amount

The Commissioner alternatively argues Winton’s counsel’s fees are excessive because

she should not have spent 86.8 hours on a fairly straightforward case. In addition, the

Commissioner suggests Winton achieved only limited success since I did not accept his

attorney’s request to find him disabled.

Courts “should generally defer to the winning lawyer’s professional judgment as to how

much time he was required to spend on the case.” Costa v. Comm’r of Soc. Sec. Admin., 690

F.3d 1132, 1136 (9th Cir. 2012) (internal quotation omitted). Under the EAJA, attorney’s fees

must be reasonable. 28 U.S.C. § 2412(d)(1)(A). Looking at the facts of each case, courts start by

determining the amount of hours reasonably spent on the case multiplied by a reasonable hourly

rate. Hensley v. Eckerhart, 461 U.S. 424, 429, 433 (1983). 

Here, Winton’s counsel has voluntarily reduced her fee request to seek payment for 69.44

hours of her work, rather than the 86.8 she actually spent on the case. Winton’s attorney’s

request is eminently reasonable. Winton’s attorney had not represented Winton at the

administrative level so she was required to read and summarize a record of over 2,000 pages. 

Additionally, the materiality of Winton’s substance abuse as a contributing factor to his disability

was central to the ALJ’s decision and a factor counsel had to address, rendering this an atypical

social security case. To that end, Winton’s counsel produced a detailed drug test chronology

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which I found instructive. The ALJ’s voluminous decision and the lengthy record, together with

the lack of delay, wasteful efforts, or useless arguments, justifies Winton’s attorney’s fee request.

I disagree with the Commissioner’s contention that the size of the record does not justify

the hours Winton’s counsel spent on the case. Courts routinely consider the extent of the

administrative record in assessing an attorney’s hours, and a longer record often justifies a higher

fee. Williams v. Astrue, 1:10-cv-00194-CL, 2012 WL 3527224, at *3-4 (D. Or. June 26, 2012)

(600 page transcript justified $8,661.67 in fees); Irwin v. Astrue, 10-cv-545-HZ, 2011 WL

5865938, at *4 (D. Or. Nov. 22, 2011) (after reduction for block billing, awarding $16,612.86 for

case involving nearly 2,000-page transcript); Ball v. Astrue, 09-cv-764-HU, 2011 WL 221835, at

*1 (D. Or. Jan. 18, 2011) (describing “more than 1500 page” administrative record as

“exceptionally long” and awarding $7,499.99 even though only one legally complex question

presented); Sprague v. Colvin, 3:12-cv-00780-ST, 2013 WL 5306998, at *1 (D. Or. Sept. 20,

2013) (692 page record justified $9,491.62 in EAJA fees).

Further, I find Winton’s attorney obtained an “excellent result” in the reversal and remand

for further administrative proceedings. Pl.’s Reply 20 (seeking reversal for finding of disability

or remand for further proceedings); see Williams, 1:10-cv-00194-CL, 2012 WL 3527224, at *4

(excellent result to achieve relief plaintiff sought); Kassa v. Colvin, 2:15-cv-00513-BHS, 2016

WL 1055382, at *4 (W.D. Wash. Feb. 23, 2016) (“Plaintiff obtained a reversal of the ALJ

decision and remand for review of the entire record, which is an excellent result.”); Schneider v.

Colvin, 1:14-cv-0034-SKO, 2016 WL 500595, at * 4 (E.D. Cal. Feb. 9, 2016) (reversal of ALJ’s

determination a “good outcome”).

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In sum, plaintiff’s counsel has met her burden of establishing the hours she spent on the

case were appropriate. See Hensley, 461 U.S. at 437 (plaintiff’s burden to show entitled to EAJA

award). I find the hours reported are reasonable, as are the fees plaintiff’s counsel requests. She

is entitled to payment of $189.78 per hour1

 for 69.44 hours, for a total of $13,178.32. In a case of

this complexity, I find the following observation to be especially persuasive: “lawyers are not

likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees

because the payoff is too uncertain.” Costa, 690 F.3d at 1136 (internal quotation and alteration

omitted). 

CONCLUSION

For the foregoing reasons, I grant plaintiff’s Motion for Fees, Costs and Expenses

Pursuant to the Equal Access to Justice Act [19] in the total amount of $13,193.32. Winton

assigned his EAJA fee payment to his attorney. Accordingly, if the government determines

Winton does not owe a federal debt, then the government shall cause the payment of the award to

be made directly Nancy J. Meserow at the Law Office of Nancy J. Meserow.

IT IS SO ORDERED.

DATED this 6th

 day of May, 2016. 

 /s/ Garr M. King 

 Garr M. King

United States District Judge

1This amount accounts for the increase in the cost of living. Meserow Decl. ¶ 6.

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