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Kalland v. Berryhill

United States District Court, D. Montana, Billings Division

October 22, 2018

KEVIN EUGENE KALLAND, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Defendant.

          ORDER

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE

         On March 31, 2018 this Court reversed the decision of the Administrative Law Judge (“ALJ”) in this matter, and remanded the case for further administrative proceedings. (Doc. 13.) The Court found the ALJ improperly discounted Plaintiff's credibility without providing specific, clear and convincing reasons for doing so, and also erred in failing to provide specific and legitimate reasons for discounting the opinions of Plaintiff's treating physician, Dr. Willis.

         Thereafter, Plaintiff requested reasonable attorney fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc. 15.) Defendant opposed Plaintiff's request, and the Court ordered Defendant to indicate its grounds for opposition. (Doc. 16.)

         Under the EAJA, a prevailing party is entitled to attorney's fees when the government was not “substantially justified” in its actions. 28 U.S.C. § 2412(d)(1)(A). Defendant claims she was substantially justified in defending the case because (1) the ALJ provided “arguably valid reasons for questioning Plaintiff's testimony” and (2) she reasonably defended the case “despite the Court's finding of error with respect to Dr. Willis's opinion.” (Doc. 17 at 2-3.) Plaintiff counters that Defendant's position was not reasonably based in law and fact. (Doc. 18 at 2.)

         For the reasons set forth herein, the Plaintiff's motion is GRANTED.

         I. Legal Standard

28 U.S.C. § 2412(d) in relevant part provides:
[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

         The position of the United States must be “justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 563 (1988).“[T]o be substantially justified, the government's position must have a reasonable basis both in law and in fact.” Trujillo v. Berryhill, 700 Fed.Appx. 764, 765 (9th Cir. 2017) (quoting Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017). “[T]he existence of precedents construing similar statutes or similar facts is an important factor in determining whether the government's litigation position was substantially justified.” Id. (citing Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)).

         The Ninth Circuit has stated that a presumption arises under the EAJA “that fees will be awarded to prevailing parties . . . .” Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). The government bears the burden of proving its position was substantially justified. Kali, 854 F.2d at 332.

         In the social security context, “the position of the United States includes both the government's litigation position [in the civil action] and the underlying agency action giving rise to the civil action.” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). In determining whether the government's position in the underlying agency action was substantially justified, the Court must first look at the ALJ's decision. Id. at 872. The Court then considers whether the government's subsequent litigation position before the district court was substantially justified. Id. But if the Court determines that the government's underlying agency position was not substantially justified, it does not need to determine whether the government's litigation position was justified. Id.

         A holding that an “agency's decision was unsupported by substantial evidence is a strong indication that the position of the United States was not substantially justified.” Id. at 872 (internal quotations and citations omitted). Indeed, “it will be only a ‘decidedly unusual case in which there is a 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 v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Al-Harbi v. INS, 284 F.3d 1080, 1085 (9th Cir. 2002)

         II. Discussion

         A. ...


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