PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MELODY F. ANDERSON,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security

Defendant.

Case No. 6:15-cv-01627-SI

OPINION AND ORDER

Karen Stolzberg, 11830 S.W. Kerr Parkway, Suite 315, Lake Oswego, OR 97035.

Attorney for Plaintiff.

Billy J. Williams, United States Attorney, and Janice E. Hébert, Assistant United States 

Attorney, UNITED STATES ATTORNEY’S OFFICE, District of Oregon, 1000 S.W. Third Avenue, 

Suite 600, Portland, OR 97204-2902; Michael Howard, Special Assistant United States Attorney, 

OFFICE OF THE GENERAL COUNSEL, SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, 

Suite 2900 M/S 221A, Seattle, WA 98104-7075. 

Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff moves for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 

U.S.C. § 2412. Defendant objects, arguing that her position was substantially justified and thus 

EAJA fees are not warranted. For the reasons discussed below, the Court grants Plaintiff’s 

motion and awards EAJA fees in the amount of $9,253.27.

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PAGE 2 – OPINION AND ORDER

EAJA STANDARD

The EAJA authorizes the payment of attorney’s fees to a prevailing party in an action 

against the United States, unless the government shows that its position in the underlying 

litigation “was substantially justified.” 28 U.S.C. § 2412(d)(1)(A). Although EAJA creates a 

presumption that fees will be awarded to a prevailing party, Congress did not intend fee shifting 

to be mandatory. Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). The decision to deny EAJA 

attorney’s fees is within the discretion of the court. Id.; Lewis v. Barnhart, 281 F.3d 1081, 1083 

(9th Cir. 2002). A social security claimant is the “prevailing party” following a sentence-four 

remand pursuant to 42 U.S.C. § 405(g) either for further administrative proceedings or for the 

payment of benefits. Flores, 49 F.3d at 567-68 (citing Shalala v. Schaefer, 509 U.S. 292, 300 

(1993)). Fee awards under the EAJA are paid to the litigant, and not the litigant’s attorney, 

unless the litigant has assigned his or her rights to counsel to receive the fee award. Astrue v. 

Ratliff, 560 U.S. 586, 596-98 (2010).

A court applies a reasonableness standard in determining whether the government’s 

position was substantially justified. Flores, 49 F.3d at 569. “The government has the burden of 

proving its positions were substantially justified.” Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2

(9th Cir. 2010). It must demonstrate that its position had a reasonable basis in both law and fact.

Flores, 49 F.3d at 569-70. The reasonableness standard is met if the government’s position is 

“justified in substance or in the main” or “to a degree that could satisfy a reasonable person.” 

Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (quotations and citation omitted); 

Lewis, 281 F.3d at 1083. The government must justify both the original agency action and its 

litigation position. Gutierrez, 274 F.3d at 1259.

The government’s failure to prevail in its position on the underlying issues is not 

dispositive of the issue of whether the government’s position was “substantially justified.” See, 

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PAGE 3 – OPINION AND ORDER

e.g., Pierce v. Underwood, 487 U.S. 552, 569 (1988) (“Conceivably, the Government could take 

a position that is not substantially justified, yet win; even more likely, it could take a position 

that is substantially justified, yet lose.”). A district court’s reversal of the ALJ’s decision, 

however, is a strong indication that the government’s defense of that decision was not 

substantially justified. See Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (“Our 

holding that the agency’s decision of [this] case was unsupported by substantial evidence is 

therefore a strong indication that the position of the United States in this matter was not 

substantially justified. 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.”) (internal quotations 

omitted).

Under the EAJA, if the government’s position is not substantially justified, the court has 

discretion to determine whether the requested fees are reasonable. See Comm’r, INS v. Jean, 496 

U.S. 154, 160-61 (1990) (the court has similar discretion under the EAJA to determine the 

reasonableness of fees as it does under the Fees Act as described in Hensley v. Eckerhart, 461 

U.S. 424, 436-37 (1983)); Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998) (discussing the Jean 

clarification that the Hensley analysis applies to EAJA cases). One factor a court must consider 

in this analysis is the results obtained. See Atkins, 154 F.3d at 989 (the results obtained factor of 

the Hensley fee analysis applies to cases under the EAJA). The Ninth Circuit has cautioned that 

district courts may not reduce requested fees in social security disability appeals without 

providing relatively specific reasons. Costa v. Comm’r Soc. Sec. Admin., 690 F.3d 1132, 1136–

37 (9th Cir. 2012).

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PAGE 4 – OPINION AND ORDER

DISCUSSION

Plaintiff seeks attorney’s fees in the amount of $9,253.27, which represents 46.2 hours of 

attorney time and 3.2 hours of paralegal time litigating the merits of Plaintiff’s appeal of the 

ALJ’s decision and preparing the fee award application. The Commissioner argues that the Court 

should decline to award fees because the government’s position was substantially justified. The 

Commissioner states: “The Court should therefore deny Plaintiff’s fee petition because the 

government was substantially justified. Even if the Court disagreed, the Commissioner had a 

reasonable basis for its defense of the ALJ’s decision.” ECF 27 at 4. 

It appears that the Commissioner is focusing her argument on whether her litigation 

decision was substantially justified. Even assuming that is true, the question remains whether the

Commissioner’s underlying decision on which this case was remanded (the ALJ’s rejection of 

Dr. Carter’s opinion) was substantially justified. As the Ninth Circuit has explained:

The government points out that its litigation position was 

substantially justified because it reasonably argued in the district 

court that the ALJ’s error was harmless under Molina v. 

Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012). To avoid an award of 

EAJA fees, however, the government must show that its position 

was substantially justified at each stage of the proceedings. See 

Meier, 727 F.3d at 872; Li, 505 F.3d at 919 (“[W]e have 

consistently held that regardless of the government’s conduct in 

the federal court proceedings, unreasonable agency action at any 

level entitles the litigant to EAJA fees.”). Because the 

government’s underlying position was not substantially justified, 

we award fees, even if the government’s litigation position may 

have been justified.

The district court concluded that the government’s position was 

substantially justified because, “[w]hile Plaintiff prevailed on the 

issue of lay witness testimony, the remainder of the ALJ’s 

conclusions were affirmed.” This rationale conflicts with our case 

law, which requires us to award fees when “the Secretary’s 

position on the . . . issues that led to remand was not substantially 

justified.” Flores v. Shalala, 49 F.3d 562, 564 (9th Cir. 1995) 

(emphasis added).

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PAGE 5 – OPINION AND ORDER

Tobeler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014) (emphasis in original). 

In resolving the underlying litigation, the Court found that the ALJ erred in rejecting the 

opinion of Dr. Carter because the reasons offered by the ALJ were not supported by substantial 

evidence. These rejected reasons included: (1) finding that Dr. Carter opined outside of her area 

of expertise when, in fact, much of her opinion was within her area of expertise; (2) rejecting

Dr. Carter’s opinion as little more than a records review when Dr. Carter had performed more 

than a records review; (3) rejecting what the ALJ characterized as a records review by Dr. Carter 

while giving great weight to the state agency medical opinions that were actually based only on a

records review, which was inconsistent; and (4) relying on the fact that Plaintiff’s counsel had 

hired Dr. Carter, which the Commissioner conceded during the litigation was not a sufficient 

reason, standing alone.

The Court finds that these positions taken by the ALJ in rejecting Dr. Carter’s opinion 

were not substantially justified. This is not a “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.” Thangaraja, 428 F.3d 

at 874. Accordingly, Plaintiff is entitled to EAJA fees.

The Commissioner does not challenge the reasonableness of Plaintiff’s fee request. The 

Court has considered the request and finds it to be reasonable. 

CONCLUSION

Plaintiff’s application for attorney’s fees (ECF 26) is GRANTED. Plaintiff is 

awarded $9,253.27 for attorney’s fees under 28 U.S.C. § 2412. EAJA fees are subject to any 

offsets allowed under the Treasury Offset Program, as discussed in Ratliff, 560 U.S. at 593-94. 

Because Plaintiff has filed with the Court an assignment of EAJA fees to counsel, if Plaintiff has 

no debt subject to the Treasury Offset Program, then Defendant shall cause the check to be made 

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PAGE 6 – OPINION AND ORDER

payable to Plaintiff’s attorney and mailed to Plaintiff’s attorney. If Plaintiff owes a debt subject 

to the Treasury Offset Program, then the check for any remaining funds after offset of the debt 

shall be payable to Plaintiff and mailed to Plaintiff’s attorney.

IT IS SO ORDERED.

DATED this 14th day of March, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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