IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

CHERYL N. INMON, 

Plaint~ 

v. 

CAROLYN W. COLVIN, Acting 

Commissioner, 

Social Security Administration, 

Defendant. 

CLARKE, Magistrate Judge. 

MEDFORD DIVISION 

Civil No. 1 :15-cv-00982-CL 

REPORT AND RECOMMENDATION 

Plaintiff Cheryl Inmon ("Plaintiff') has filed an application for attorney fees pursuant to the 

Equal Access to Justice Act (EAJA) (#22), 28 U.S.C. § 2412, seeking costs and attorney fees in the 

amount of$6,784.50 [30.4 total hours of attorney tirre, 6 hours of paralegal tirre, and a $400 filing 

fee]. The Commissioner objects to Plaintiffs application For the reasons explained, Plaintiff's 

application should be granted. 

BACKGROUND 

Plaintiff obtained a judgment remanding this matter pursuant to sentence four of 42 U.S.C. 

§ 405(g) for further proceedings (#20). Plaintiff is the prevailing party. Plaintiff alleges that her net 

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worth ireets the EAJA net-worth requireirents. The Commissioner concedes that the administrative 

decision was not substantially justified, and stipulates to the hourly rate; no objections are raised to 

the hours of attorney and paralegal tiire proposed by Plaintiff or the filing fue cost. Rather, the 

Commissioner asserts that special circumstances in this case make :fee-shifting lllljust. Specifically, 

the Commissioner argues that Plaintiff's collllSel ("CollllSef') "contnbuted significantly to the 

Administrative Law Judge's [] error." Comrn'r's Resp., p. 3. 

The genesis of the Commissioner's argument is CollllSel's request to postpone an in-person 

hearing scheduled for February 14, 2013, due to her client's bad heahh; winter weather; general poor 

road conditions between Plaintiff's hoire in Seaside, Oregon, and Portland, Oregon, the scheduled 

location of the hearing; and the fact that the hearing site was not within seventy-five miles of 

Plaintiff's residence. 1 The Administrative Law Judge ("AI.J') denied Counsel's request and held the 

hearing, as scheduled, on February 14, 2013, over Counsel's objection The A1J folllld Plaintiff 

"failed to provide good cause for objecting to the time or place of the hearing," specifically stating 

that Portland was the nearest hearing office to Plaintiff's residence; Plaintiff had made no irention 

of her inability to attend a hearing in Portland when she first made a request for an in-person hearing; 

Plaintiff's argument that her health issues precluded travel-which was accompanied by a 

corroborating note from her physician-was "not substantiated by evidence in the iredical record" 

and inconsistent with Plaintiff engaging in rmre strenuously activities; and Plaintiff's argument of 

poor weather and road conditions was made too far in advance. Tr. 16-17. 

1To the extent that it is possible, HALLEX I-2-3-10 instructs that the hearing site be within seventy-five miles of 

the claimant's residence. Counsel argues hearings have been held in Astoria, Oregon, which is within seventy-five miles of 

Plaintiffs residence and, therefore, Plaintiff's hearing should have been conducted in Astoria. The AU states that Astoria 

is not a hearing office. 

2 - REPORT AND RECOMMENDATION 

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At the hearing, Counsel appeared without her client, stating Plaintiff was unable to appear 

due to the above-mentioned reasons. Counsel explained that she infurmed Plaintiff the matter would 

likely be dismissed if Plaintiff did not appear in person or by telephone, but-knowing that Plaintiff 

could not appear in person and that her case would likely be dismissed if she made no 

appearance-she advised Plaintiff against a telephonic appearance, apparently believing Plaintiff 

would be better off appealing the AU's dismissal The AU responded by suggesting that Counsel 

had told her client not to cooperate. Counsel denied this assertion, arguing she had told her client 

they wanted to have an in-person hearing. Thereafter, in an effort to determine what Plaintiff herself 

wanted, the ALJ asked for Plaintiffs phone number, but Counsel refused to provide it, stating, ''I'm 

not going to cooperate with a telephone hearing. I've told you that." Tr. 44. Later in the hearing, 

Counsel also indicated that she had not submitted updated medical records, saying that she had not 

"anticipat[ ed] having a hearing today," so the record had not been brought up to date. Tr. 4 7. 

In a written decision issued on March 11, 2013, the AU held that, by railing to appear at the 

February 2013 hearing, Plaintiff had constructively waived her right to appear; however, the AU 

decided against dismissing the case, noting that Counsel appeared, making dismissal inappropriate. 

Consequently, the ALJ proceeded with issuing a decision based on the merits of Plaintiffs case. The 

AU subsequently denied Plaintiffs application for Social Security disability benefits. The parties 

have stipulated that the AU's decision to deny benefits be reversed and remanded and, on remand, 

that Plaintiff be provided "an opportunity for a new hearing." Stipulated Mot. for Remand, p. 1-2. 

Additional fucts related to particular claims are discussed below. 

Ill 

Ill 

3 - REPORT AND RECOMMENDATION 

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DISCUSSION 

I. "Special Circumstances" Exception 

Based on Counsel's actions at the February 2013 hearing, the Connnissioner asserts Counsel 

significantly contnbuted to the record's deficiency and ''possibly even encourag[ ed] procedural 

error," making it unjust under the "special circumstances" exception to award Plaintiff costs and 

attorney fees. Corrnn'r's Resp., p. 3. As explained below, the Court finds the Connnissioner has 

fuiled to show that the equities warrant denying Plaintiff costs and attorney fees. 

A court is prohibited from awarding costs and attorney fees under the EAJA where "special 

circumstances make an award unjust." 28 U.S.C. § 2412(d)(l)(A). The government bears the burden 

of showing special circumstances exist making an award unjust. Gutierrez v. Barnhart, 274 F.3d 

1255, 1258 (9th Cir. 2001). 'The 'special circumstances' exception to the mandatory award of 

attorney fees when the government's position was not substantially justified" was created to make 

certain that the government not be deterred from firrthering "good fuith but novel legal argrnrents 

and to protect the court's discretion to rely on equitable fuctors in denying a fee award." Abela v. 

GustafSon, 888 F.2d 1258, 1266 (9th Cir. 1989) (citing H.R Rep. No. 96-1418 at 11, reprinted in 

1980 U.S. Code Cong. & Admin. News at 4953, 4990). The exception "should only be invoked with 

caution" Lucas v. White, 63 F. Supp. 2d 1046, 1056 (N.D. Cal 1999). 

The Connnissioner advanced no novel legal argrnrents, nor does the Connnissioner contend 

she has. Instead, the Commissioner's sole argrnrent is that equitable fuctors deny a fee award. As 

stated, the Commissioner argues Counsel significantly contributed to the AU's error. In advancing 

this argrnrent, the Commissioner appears to rely on three specific developments that took place at 

the February 2013 hearing: (1) Counsel's refusal to divulge her client's telephone mnnber and submit 

4 - REPORT AND RECOMMENDATION 

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her client to a telephonic hearing; (2) The ALJ's suggestion that Counsel instructed her client not 

to cooperate, either by :tailing to appear in person or by telephone; and (3) Counsel's fuilure to update 

medical records, fuilure to notify the agency of additional medical records, and fuilure to take 

necessary steps to substantively prepare fur the February 2013 hearing. The Court will address each 

in tum 

A. Failure to Submit to a Telephonic Hearing 

Counsel's refusal to cooperate with a telephonic hearing does not warrant application of the 

"special circlll11Stances" exception Plaint~ through her counseL made clear that she wanted an inperson hearing. In fuct, Plaintiff's initial hearing was scheduled to be conducted through video 

teleconferencing. It was not until Plaintiff timely objected and invoked her right under 20 C.F.R. § 

404.936(d) (2014) to have an in-person hearing that the ALT moved the hearing to Portland. Thus, 

Counsel's refusal to "cooperate with a telephone hearing," fur from "encouraging procedural error," 

appears to be in line with her client's wishes and suggests nothing more than z.ealous advocacy. 

B. Alleged Advice Not to Cooperate 

The facts do not indicate that Plaintiff's fuilure to appear at the February 2013 was at the 

direction of her counsel or that Counsel advocated Plaintiff not cooperate with the agency. Rather, 

the record indicates Plaintiff was genuinely unable to appear on the scheduled hearing date. Indeed, 

Plaint~ through her counsel, initially requested postponement in December 2012; she made 

additional requests in January and February 2013, apparently after receiving no response from the 

Portland and Seattle Offices of Disability Adjudication And Counsel made clear in January that 

Plaintiff was unable to attend the scheduled February 2013 hearing because Plaintiff couk:l not travel 

from Seaside to Portland during the winter months; this assertion was corroborated in a note from 

5 - REPORT AND RECOMMENDATION 

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her physician. Moreover, CollllSel directly contacted the AL.J's assistant and the ALT, informing them 

that Plaintiff was unable to attend the February 2013 hearing. Accordingly, Plaintiffs absence from 

the February 2013 hearing shoukl have come at no surprise and does not appear to be some ploy by 

Counsel to encourage procedmal error. 

C. Failure to Update Medical Records and Failure to Prepare for Hearing 

Finally, the Connnissioner argues that the equities weigh against fee-shifting because 

"Plaintiffs counsel made it clear that she had not submitted updated medical records, notified the 

agency of additional medical records, or taken steps to prepare substantively for the hearing." 

Comm'r's Resp., p. 3. The Connnissioner maintains that the regulations in place in February 2013 

required Counsel to "[a ]ct with reasonable promptness to obtain the information and evidence that 

the claimant wants to submit in support of his or her claim, and forward the same to [the agency] for 

consideration as soon as practicable." 20 C.F.R. § 404.1740(b)(l) (2012). Because Counsel fuiled 

to do so, the Connnissioner states that Counsel significantly contributed to the record's deficiency 

and the "special circum5tances" exception applies. 

Plaintiff counters by arguing that the situation was not one of neglect, delay, or 

unpreparedness on her counsel's part; instead, the record was not developed at the hearing because 

Plaintiff was unable to attend the hearing. Additionally, Plaintiff asserts that her counsel's office's 

policy is not to update medical records until ''the run-up to [the] hearing." Pl 's Reply, p. 5. Plaintiff 

stresses that this is "a pragmatic approach," initiated to save office overhead and client costs, since 

medical-record requests take up "significant staff time" and are expensive. Pl 's Reply, p. 5. Plaintiff 

asserts that this practice is "consistent with the requirements of Social Sectrrity regulations." Pl 's 

Reply, p. 5. Finally, Plaintiff argues that because ''her inability to attend the February hearing was 

6 - REPORT AND RECOMMENDATION 

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never in question, it was not only reasonable but prudent for [her] lawyer to delay updating the 

medical file." Pl 's Reply, p. 5. 

First, as to the Commissioner's argument that Counsel was unprepared, the transcript of the 

February 2013 hearing indicates Counsel was not somehow neglecting her duties; rather, she 

objected to taking vocational expert testimony, believing the hearing was illegitimate due to her 

client's inability to attend the hearing in person It cannot be argued that this objection was so 

improper that the narrowly construed "special circumstances" exception applies and should deny 

Plaintiff fees. 

Next, the Commissioner's argument that Counsel's failure to update the medical records 

warrants a finding that fee-shifting is inappropriate also fails. Much like Counsel's decision not to 

cooperate with a telephonic hearing, it appears that her decision to delay updating her client's 

medical records was driven by a strategic decision to advance her client's interests, not by a desire 

to subvert the decision-making process. As stated, it was clear by at least January that weather, road 

conditions, and Plaintiff's health precluded Plaintiff's attendance at the February 2013 hearing. 

Therefore, it is reasonable to interpret Counsel's decision to forego requesting expensive medical 

updates as a pragmatic decision to save her client money, knowing that her client would be unable 

to attend the February 2013 hearing and the AU would like dismiss Plaintiff's case for 

nonappearance anyway. Accordingly, this appears to be nothing more than a strategic decision, 

which does not appear to be made in bad faith, and the Court finds that the Commissioner has failed 

to carry its burden to show that Counsel's decisions surrounding Plaintiff's medical records weighs 

against fee-shifting. 

II I 

7 - REPORT AND RECOMMENDATION 

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D. No Special Circumstances Proven 

The Connnissioner has fuiled to prove special circUIIBtances exist that would defeat the fee 

award. The "special circumstances" exception is to be invoked with caution Lucas, 63 F. Supp. 2d 

at 1056. And, here, Counsel's strategic choices, which do not appear to be made in bad fuith but 

rather in an effort to advance her client's interest in an efficient and cost-savvy manner, do not 

amount to the type of bad fuith that would justify shifting the equities. No special circumstance 

applies, and EAJA fees should be awarded to Plaintiff 

II. Reasonableness of Fees and Costs 

The Supreme Court has found that, "once a private litigant has met the multiple conditions 

for eligibility for EAJA fees, the district court's task of determining what fee is reasonable is 

essentially the same as that descnbed in Hensley [v. Eckerhardt, 461 U.S. 424 (1983), where the 

Court determined an award of attorney's fees in a civil rights case]." Connnissioner v. Jean 496 

U.S. 154, 161 (1990). "The party opposing the fee application has a burden ofrebuttal that requires 

submission of evidence to the district court challenging the accuracy and reasonableness of the hours 

charged or the fucts asserted by the prevailing party in its submitted affidavits." Gates v. 

Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1993) (emphasis added); Gates v. Rowland, 39 F.3d 

1439, 1449 (9th Cir. 1994); Lucas, 63 F. Supp.2d at 1057. ''Conclusory and unsubstantiated 

objections are not sufficient to warrant a reduction in fees." Lucas, 63 F. Supp.2d at 1057-58 (citing 

Gates, 987 F.2d at 1397-98). 

Ill 

II I 

Ill 

8 - REPORT AND RECOMMENDATION 

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Here, the Commissioner raises no objections to the hourly rate, the hours of attorney and 

paralegal time proposed by Plaintift; or the cost of the filing fee. Having reviewed the record, the 

Court finds the munber of hours spent by Colll1Sel and the hourly fee requested reasonable under the 

EAJA. IT IS RECOMMENDED that Plaintiff's motion for costs and attorney fees (#22) llllder the 

EAJA be granted. 

RECOMMENDATION 

Based on the foregoing, it is reconnnended that Plaintiff's application for costs and attorney 

fees llllder the EAJA (#22) be granted in the amollllt of $6,784.50, and a supplemental judgment 

entered accordingly. Plaintiff has evidently filed an assignment of EAJA fees. PL 's Am Appl for 

Att'y Fees, p.2 n.1. As such, llllless it is determined that Plaintiff owes a federal debt, the fee award 

shall be made payable to Plaintiff's colll1Sel See Astrue v. Ratlift; 560 U.S. 586, 595-97 (2010). 

This reconnnendation is not an order that is innnediately appealable to the Ninth Circuit 

Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed lllltil entry of the district court's judgment or appealable order. 

The Report and Reconnnendation will be referred to a district judge. Objections to this 

Report and Recommendation, if any, are due no later than fuurteen (14) days after the date this 

reconnnendation is filed. Federal Rules of Civil Procedure 72. If objections are filed, any response 

to the objections is due within fourteen (14) days after being served with a copy of the objections. 

Id. 

Failure to timely :file objections to any fuctual determinations of the Magistrate Judge will 

be considered a waiver of a party's right to de novo consideration of the fuctual issues and will 

constitute a waiver of a party's right to appellate review of the :findings of fuct in an order or 

9 - REPORT AND RECOMMENDATION 

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judgment entered pursuant to the Magistrate Judge's recommendation 

United States Magistrate Judge 

10 - REPORT AND RECOMMENDATION 

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