UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON

MICHELLE MARIE PHILLIPS,

Plaintiff,

v. 

COMMISSIONER, Social Security

Administration,

Defendant.

Case No. 6:15-CV-01603-KI

OPINION AND ORDER 

ON EAJA FEES

Katherine L. Eitenmiller

Brent Wells

Harder, Wells, Baron & Manning, P.C.

474 Willamette, Suite 200

Eugene, OR 97401

Attorneys for Plaintiff

Billy J. Williams

United States Attorney

District of Oregon

Janice E. Hebert

Assistant United States Attorney

1000 SW Third Ave., Ste. 600

Portland, OR 97204

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Brett E. Eckelberg

Special Assistant United States Attorney

Office of the General Counsel

Social Security Administration

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

Seattle, WA 98104

Attorneys for Defendant

KING, Judge:

Plaintiff Michelle Marie Phillips brought this 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”) and

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

remanded for further proceedings.

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 Phillips 

$9,144.98 in attorney fees and $400 in costs.

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

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). 

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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. I.N.S., 284 F.3d 1080, 1085 (9th Cir. 2002)); Meier, 727 F.3d at 872 (same). 

BACKGROUND

I rejected Phillips’ arguments that the ALJ should have found fibromyalgia a severe

impairment, and that the ALJ erred in her treatment of the opinion of James Morris, M.D. I

agreed with Phillips, however, that the ALJ did not account for all of her mental health

impairments in the RFC and improperly rejected the opinion of Ryan Scott, Ph.D, a physician

hired by the agency who thought Phillips would have difficulty working due to her mental health

impairments. I noted Dr. Scott’s opinion was supported by the longitudinal record. As a result,

substantial evidence supported Dr. Scott’s concern that Phillips would miss workdays. The

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ALJ’s finding that Phillips had the capacity to perform other work in the national economy was

premised on her improper rejection of Dr. Scott’s opinion. As a result, the ALJ’s conclusion was

not supported by substantial evidence. Fully crediting Dr. Scott’s opinion that Phillips’ mental

impairments would impact her ability to sustain regular employment, along with the VE

testimony that missing one day a month would interfere with employment, meant that a finding

of disability on remand was required. 

Nevertheless, I did not remand for a total finding of disability. While it was clear to me

that Phillips’ mental impairments caused her to become disabled at some point prior to her date

last insured, it was not apparent that she was entitled to ongoing disability benefits; rather, I

thought benefits for a “closed” period of disability was more appropriate. Thus, I found the best

course of action was reversal for further development of the record, including a decision as to the

beginning and end dates of at least a closed period of disability. 

DISCUSSION

Phillips is the prevailing party in this action. The Commissioner, however, argues that

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

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

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 ALJ erroneously assessed some of the medical evidence, disregarding it for reasons

that were not specific and legitimate. Specifically, the record overwhelmingly supported Dr.

Scott’s conclusion that Phillips had difficulty attending school and work due to depression, the

ALJ did not explain how performing well on testing was related to attendance, and the ALJ based

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her decision in part on the fact that Dr. Scott saw Phillips on one occasion when she relied on

two consulting physicians who had not met Phillips at all. Andrews v. Shalala, 53 F.3d 1035,

1041 (9th Cir. 1995) (the opinion of a nonexamining physician is entitled to less weight than that

of an examining physician). Properly crediting Dr. Scott’s opinion meant that Phillips was

entitled to a finding of disability for at least a closed period of time. 

While my decision finding the ALJ erred is not alone sufficient to demonstrate an

absence of substantial justification, Kali, 854 F.2d at 334, this is not 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.” Thangaraja,

428 F.3d at 874 (9th Cir. 2005) (quotation omitted).

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. 

In sum, I find the Commissioner has failed to meet her burden in showing the ALJ’s 

decision was substantially justified, and I conclude this is not the unusual case warranting a

denial of EAJA fees. 

CONCLUSION

For the foregoing reasons, I grant Phillips’ Motion for Fees Under the Equal Access to

Justice Act [22] in the amount of $9,144.98 in attorney fees and $400 in costs. Payment of the

award shall be via check made payable to Phillips and mailed to Harder, Wells, Baron &

Manning P.C., 474 Willamette Street, Eugene Oregon 97401. Pursuant to Astrue v. Ratliff, the

award shall be made payable to Phillips’ attorney if the Commissioner confirms that Phillips

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owes no debt to the government through the Federal Treasury Offset program. There are no

expenses to be paid herein.

IT IS SO ORDERED.

DATED this 27th

 day of March, 2017. 

 /s/ Garr M. King 

 Garr M. King

United States District Judge

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