IN THE UNITED STATES DISTRICT COURT 


FOR THE DISTRICT OF OREGON 


EUGENE DIVISION 


SEAN L. FARLEY, Case No. 6: 15-cv-00643-AA 

ORDER 

Plaintiff, 

v. 

CAROLYN W. COL VIN, Acting 

Commissioner of Social Security, 

Defendant. 

AIKEN, Judge: 

Plaintiff Sean L. Farley seeks attorney fees and costs pursuant to the Equal Access to Justice 

Act ("EAJA"), 28 U.S.C. § 2412. The Commissioner ofSocial Security ("Commissioner") opposes 

plaintiffs motion. For the reasons set forth below, plaintiffs motion is granted. 

BACKGROUND 

Plaintiff applied for disability insurance benefits and supplemental security income in 2011, 

alleging disability beginning in 2006 due to hemophilia, hepatitis B and C, severe aiihritis, carpal 

tunnel syndrome, depression, and extreme high blood pressure. Tr. 218, 222, 239. OnJuly23, 2013, 

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an Administrative Law Judge ("ALJ") denied plaintiffs claim for benefits. Tr. 18. On Februaiy 13, 

2015, the Appeals Council declined review. Tr. !. On June 27, 2016, this Court reversed and 

remanded for fmther proceedings. Farley v. Colvin, 2016 WL 3509386 (D. Or. Jun. 27, 2016). 

Having successfully obtained a remand, plaintiff timely filed a motion for attorney fees in the amount 

of$5,985.22. 

STANDARD OF REVIEW 

A party that prevails against the United States government in a civil action is entitled, under 

certain circumstances, to an award of attorney fees under the EAJA. 28 U.S.C. § 2412. In pe1tinent 

pait, the EAJA provides: 

[ e ]xcept as otherwise specifically provided by statute, a court shall award to a 

prevailing patty other than the United States fees and other expenses, in addition to 

any costs awarded pursuant to subsection (a), incurred by that party in any civil 

action (other than cases sounding in tort), including proceedings for judicial review 

of agency action, brought by or against the United States in any court having 

jurisdiction ofthat action, unless the court finds that the position ofthe United States 

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

28 U.S.C. § 2412( d)(l )(A). 

Thus, the EAJA establishes a two-paittest for determining whether an award ofattorney fees 

is appropriate. The cou1t must first ascertain ifthe plaintiff was a prevailing party; if so, the co mt 

must then evaluate whether the government was substantially justified in its position and whether 

other special circumstances exist that make an award of attorney fees unjust. Flores v. Shala/a, 49 

F.3d 562, 567 (9th Cir. 1995). Ifthe government proves it was substantially justified, attorney fees 

will not be awarded to the plaintiff. Id. 

DISCUSSION 

It is undisputed plaintiff is a prevailing party and therefore satisfies the first requirement for 

an award ofattorney fees under 28 U.S.C. § 2412( d)(l )(A). See Shala/av. Schaefer, 509 U.S. 292, 

300-02 (1993). Fmther, the Commissioner does not object to the amount of hours expended, the 

amount of costs, or the requested hourly rate. See generally Def. 's Resp. Mot. Att'y Fees. I have 

reviewed the petition and find the requested fee amount reasonable. Hensley v. Eckerhart, 461 U.S. 

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Case 6:15-cv-00643-AA Document 30 Filed 11/21/16 Page 2 of 5
424, 433 (1983). Accordingly, plaintiffs entitlement to attorney fees hinges on "whether the 

government's decision to defend on appeal the procedural errors committed by the ALJ was 

substantially justified." Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). 

A federal court is "require[d] to award fees when 'the [Commissioner's] position on the ... 

issues that led to remand was not substantially justified.'" Tobe/er v. Colvin, 749 F.3d 830, 834 (9th 

Cir. 2014) (quoting Flores, 49 F.3d at 564) (emphasis omitted)). In order to overcome the 

presumption attorney fees will be awarded under the EAJA, the government has the burden to 

demonstrate its position had "a reasonable basis in both law and fact." Pierce v. Underwood, 487 

U.S. 552, 564 (1988). The requirement applies both to "the government's litigation position and the 

underlying agency action giving rise to the civil action." Meier v. Colvin, 727 F.3d 867, 870 (9th 

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

address whether the government's litigation position was justified." Id. at 872. 

When the agency's decision is not suppo11ed by substantial evidence, that is a "strong 

indication" the government's position in the underlying agency action was not substantially justified. 

Thangaraja v. Gonzalez, 428 F.3d 870, 874 (9th Cir. 2005). It is the "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. (citation and 

quotation marks omitted). This is because there is "significant similarity" between the deferential 

"substantial evidence" standard for review ofthe Commissioner's disability determination and the 

"substantially justified" standard under the EAJA. J\!feier, 727 F.3d at 872. 

In this case, remand for further proceedings was necessaiy because the ALJ failed to provide 

specific, legitimate reasons to discredit the opinion of Dr. Taylor, plaintiffs treating physician. 

Farley, 2016 WL 3509386 at *4. The ALJ provided a single reason for discrediting Dr. Taylor's 

opinion: purported inconsistencies between Dr. Taylor's treatment notes and his statements that 

plaintiff could lift 10 pounds only occasionally and would miss work more than two days per month. 

Tr. 28-29. This Court held that "[c]ontrary to the ALJ's conclusion, Dr. Taylor's opinion is not 

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inconsistent with his own treatment notes or the medical record." Farley, 2016 WL 3509386 at *4. 

The government argues the ALJ was substantially justified in discrediting Dr. Taylor's 

opinion because, "when evaluating conflicting medical opinions, an ALJ need not accept the opinion 

of a doctor ifthat opinion is brief, conclusory, and inadequately suppo1ted by clinical findings." 

Def.'sResp. Mot. Att'y Fees at3 (quotingBaylissv. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). 

But here, the ALJ did not reject Dr. Taylor's opinion because it was inadequately supported by 

treatment notes-he rejected Dr. Taylor's opinion because it was inconsistent with treatment notes. 

This Court is "constrained to review the reasons the ALJ asserts" on appeal. Connett v. Barnhart, 

340 F.3d 871, 874 (9th Cir. 2003). I cannot find the Commissioner's position in the proceedings 

below substantially justified based on a rationale the ALJ did not provide. 

This Court also remanded because the ALJ erred at step two. Specifically, this Court held 

the ALJ erred in failing to designate plaintiffs shoulder impingement "severe" at step two. Farley, 

2016 WL 3509386 at *5. This Court also found the ALJ's failure to consider the relationship 

between arthritis, hemophilia, and potential joint pain "raise[ d] serious questions about whether the 

... decision at step two rested on a complete and correct understanding ofthe record." Farley, 2016 

WL 3509386 at *5. 

The government contends the ALJ' s step-two analysis was substantially justified because the 

"erroneous omission of an impairment at step two is harmless where the ALJ considers any 

limitations stemming from that impairment at later steps of the sequential evaluation process." 

Def.'s Resp. Mot. Att'y Fees at 4 (citing Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)). This 

argument is foreclosed by the prior opinion, in which this Comt held it was not possible to "conclude 

the errors at step two were harmless" because "[t]he inclusion ofarthritis or hempophilic arthropathy 

in the list ofsevere or nonsevere impairments could change the formulation ofthe RFC and what 

jobs are available to the plaintiff." Farley, 2016 WL 3509386 at *5. 

CONCLUSION 

This is not the "decidedly unusual case" where the Commissioner's decision, though 

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unsupported by substantial evidence, meets the substantial justification standard. Thangaraja, 428 

F.3d at 874. Accordingly, plaintiff's EAJA application (doc. 26) is GRANTED. Plaintiff is awarded 

fees in the sum of $5,985.22. 

IT IS SO ORDERED. 

Dated thisdJ day ofNovember 2016. 

fku~ Ann Aiken 


United States District Judge 


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