Garcia v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE DISTRICT OF ARIZONA 7 8 Juan Carlos Garcia, ) No. CIV 18-504-TUC-LAB ) 9 Plaintiff, ) ORDER ) 10 vs. ) ) 11 Commissioner of Social Security) Administration, ) 12 ) Defendant. ) 13 ) ) 14 15 Pending before the court is the plaintiff’s motion for attorneys’ fees pursuant to the Equal 16 Access to Justice Act (EAJA), filed on August 29, 2019. (Doc. 22) 17 The plaintiff filed this action for review of the final decision of the Commissioner for 18 Social Security pursuant to 42 U.S.C. § 405(g). In an order issued on June 7, 2019, this court 19 reversed the Commissioner’s final decision and remanded the case for further proceedings. The 20 plaintiff moves for attorneys’ fees in the amount of $9,690.47 pursuant to the EAJA, 28 U.S.C. 21 § 2412. (Doc. 22); (Doc. 25, p. 9) The defendant filed a response arguing that the motion for 22 attorney’s fees should be denied because the government’s position was substantially justified 23 and, in the alternative, that the fees requested are not reasonable. (Doc. 24) 24 25 Discussion 26 Pursuant to the Equal Access to Justice Act (EAJA): 27 28 1 [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 . . . including 2 proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that 3 the position of the United States was substantially justified or that special circumstances make an award unjust. 4 Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (quoting 28 U.S.C. § 2412(d)(1)(A)) 5 (emphasis added). The phrase “fees and other expenses” includes reasonable attorneys’ fees. 6 Shafer, 518 F.3d at 1071. 7 The plaintiff in this case argues that attorney’s fees in the amount of $9,690.47 should 8 be awarded. (Doc. 22); (Doc. 25, p. 9) The Commissioner argues the motion should be denied 9 because, among other things, the government’s position was “substantially justified.” (Doc. 24) 10 “‘Substantial justification’ under the EAJA means that the government’s position must 11 have a reasonable basis in law and fact.” Shafer, 518 F.3d at 1071. “The government’s 12 position must be substantially justified at each stage of the proceedings.” Id. “It is the 13 government’s burden to show that its position was substantially justified.” Tobeler v. Colvin, 14 749 F.3d 830, 832 (9th Cir. 2014). 15 In this case, the court reversed the decision of the administrative law judge (ALJ) 16 because he “reject[ed] the claimant’s testimony about the severity of [his] symptoms” without 17 “offering specific, clear and convincing reasons for doing so.” (Doc. 20, pp. 8-9) (citing 18 Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015)). The ALJ summarized the medical 19 evidence in support of his residual functional capacity finding, but he failed to identify 20 specifically which of the claimant’s statements he disbelieved and why. (Doc. 20, p. 9) This 21 was error in violation of controlling Ninth Circuit law. See Brown-Hunter v. Colvin, 806 F.3d 22 at 493. 23 The Ninth Circuit considers a procedural error of this type to be a “basic and 24 fundamental” error. Shafer, 518 F.3d at 1071-72 (discussing the ALJ’s failure to provide “clear 25 and convincing” reasons for discounting a treating physician’s opinion). Absent special 26 circumstances, “the defense of basic and fundamental errors . . . is difficult to justify.” Corbin 27 v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998). Accordingly, this court finds that the 28 1 Commissioner’s decision to defend the ALJ’s error here was not substantially justified. See, 2 e.g., Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008); Solomon v. Comm’r of Soc. Sec., 3 2019 WL 1599419, at *3 (E.D. Cal. 2019) (Where the ALJ’s “failure to provide legally 4 adequate reasons for rejecting the testimony of the claimant and the third-par[t]y witnesses was 5 contrary to controlling law in this circuit,” the Government’s position was not “substantially 6 justified.”). 7 The Commissioner further argues that the fees requested by the claimant are not 8 reasonable. The court considers the Commissioner’s arguments in turn. 9 First, the Commissioner objects to counsel’s use of “block billing.” Block billing is a 10 practice in which the practitioner reports a single block of time and lists a number of tasks 11 performed during that time. Block billing is disfavored because it is difficult to determine how 12 much time was spent on each task, which is problematic if some of the tasks are not 13 compensable. 14 The Commissioner objects specifically to counsel’s entry on October 4, 2018 for 3.5 15 hours for “conference with a staff member, reviewing the ALJ’s decision and exhibits, 16 conducting legal research, drafting the Complaint, and emailing the office for an unknown 17 reason.” (Doc. 24, pp. 8-9) He does not, however, explain why he finds this particular entry 18 objectionable beyond his general argument that block billing is disfavored. The court finds the 19 listed tasks to be compensable. Accordingly, the fact that they were grouped together is not 20 particularly troubling. 21 The Commissioner complains about block billing on October 11, 2018 and February 20, 22 2019 because counsel spent part of that time “to review filed documents, which is an 23 unnecessary clerical task that is not compensable.” (Doc. 24, p. 9) The court does not agree. 24 Reviewing a pleading for spelling errors would be a clerical task, but reviewing a pleading with 25 an eye toward making one’s arguments as clear and persuasive as possible is a job for counsel 26 and therefore compensable. The court assumes that counsel was engaged in the latter task. The 27 former seems now to be entirely left to the computers. 28 1 The Commissioner further argues that “counsel’s time spent preparing the Complaint was 2 excessive.” (Doc. 24, p. 9) Here, counsel reports spending approximately 4 hours preparing 3 the Complaint. This, the Commissioner argues, is excessive because a Social Security 4 complaint need only provide a bare minimum of information. 5 In this case, counsel’s complaint is longer and more detailed than most Social Security 6 complaints this court has seen. It is apparently counsel’s practice to spend time early in the case 7 examining the record and identifying issues. This practice requires spending relatively more 8 time preparing the complaint than is the general practice, but time spent at the complaint stage 9 is time that will serve counsel well when the merits briefs are eventually prepared. Indeed, it 10 is possible, as counsel explains, that a well prepared complaint can persuade the Commissioner 11 that this case should be remanded before the case is fully briefed, which would save all parties 12 time and money. Counsel’s approach is unorthodox, but his total EAJA request is not 13 significantly larger than those submitted by other practitioners in this area. Accordingly, the 14 court cannot conclude that his approach is either inefficient or redundant. 15 The Commissioner further argues that counsel spent too much time preparing the merits 16 briefs. He notes that Attorney Larkin spent 16 hours preparing the initial draft, Attorney 17 Caldwell spent 7.5 hours editing the draft, Attorney Larkin spent 0.5 hours editing the brief, and 18 an additional 1.1 hours were spent in emails between attorneys and staff. (Doc. 24, p. 11) The 19 Commissioner argues that 16 hours was an appropriate amount of time to prepare and edit the 20 opening brief. 21 The Commissioner, however, provides no support for his assertion that 16 hours should 22 be the standard. And without more, this court is disinclined to second-guess counsel’s conduct 23 in prosecuting his case. As the Ninth Circuit has observed, “[b]y and large, the court should 24 defer to the winning lawyer’s professional judgment as to how much time he was required to 25 spend on the case; after all, he won, and might not have, had he been more of a slacker.” 26 Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Accordingly, 27 28 1 IT IS ORDERED that the plaintiff's motion for attorneys’ fees pursuant to the Equal 2 || Access to Justice Act (EAJA), filed on August 29, 2019, is GRANTED. (Doc. 22) The plaintiff 3 || is awarded attorneys’ fees in the amount of $9,690.47. 4 It is the court’s understanding that the government will determine whether the plaintiff 5 || owes the government a debt subject to offset and, if not, then payment may be made to counsel. 6 || (Doc. 24, pp. 12-13) 7 8 DATED this 25" day of September, 2019. 9 10 1 Rebs Bowman 12 Leslie A. Bowman United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5]