(SS) Lao v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHOR LAO, No. 2:17-cv-2301 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This matter is before the court on plaintiff’s motion for attorney’s fees pursuant to the 19 Equal Access to Justice Act (“EAJA”).2 (ECF No. 25.) Plaintiff brought this action seeking 20 judicial review of a final administrative decision denying plaintiff’s application for Disability 21 Insurance Benefits under Title II of the Social Security Act. On March 22, 2019, following the 22 filing of a motion for summary judgment by plaintiff and a cross-motion for summary judgment 23 by defendant, the undersigned granted plaintiff’s motion in part, reversed the decision of the 24 Commissioner, and remanded this action for further proceedings. (ECF No. 21.) 25 //// 26 27 1 Andrew M. Saul is substituted as defendant pursuant to Fed. R. Civ. P. 25(d). 2 Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant 28 1 On May 30, 2019, plaintiff filed a proposed order for EAJA fees. (ECF No. 23.) Plaintiff 2 filed an amended proposed order and memorandum in support for attorney’s fees on June 2, 2019. 3 (ECF No. 24.) Defendant filed an opposition on July 1, 2017. (ECF No. 25.) On July 10, 2019, 4 plaintiff filed a reply to defendant’s opposition. (ECF No. 26.) 5 STANDARDS 6 The EAJA provides that “a court shall award to a prevailing party . . . fees and other 7 expenses . . . incurred by that party in any civil action . . . brought by or against the United States . 8 . . unless the court finds that the position of the United States was substantially justified or that 9 special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gisbrecht v. 10 Barnhart, 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was 11 substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v. 12 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 13 A “party” under the EAJA is defined as including “an individual whose net worth did not 14 exceed $2,000,000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The 15 term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). 16 “The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the 17 prevailing party to the extent that the party ‘unduly and unreasonably protracted’ the final 18 resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 19 2412(d)(1)(C) & 2412(d)(2)(D)). 20 A party who obtains a remand in a Social Security case is a prevailing party for purposes 21 of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has 22 ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence 23 four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.”). “An 24 applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the 25 denial of her benefits is reversed and remanded regardless of whether disability benefits 26 ultimately are awarded.” Gutierrez, 274 F.3d at 1257. 27 //// 28 //// 1 ANALYSIS 2 Here, the court finds that plaintiff is the prevailing party, that plaintiff did not unduly 3 delay this litigation, and that plaintiff’s net worth did not exceed two million dollars when this 4 action was filed. (ECF No. 2.) Moreover, as explained below, the court finds that the position of 5 the United States was not substantially justified. 6 A. Substantial Justification 7 “Substantial justification means ‘justified in substance or in the main—that is, justified to 8 a degree that could satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 9 2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the 10 government’s position must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 11 870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United 12 States includes both the government’s litigation position and the underlying agency action.’” 13 Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also 14 Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the 15 government’s decision to defend on appeal the procedural errors committed by the ALJ was 16 substantially justified”). “In determining whether a party is eligible for fees under EAJA, the 17 district court must determine whether the government’s position regarding the specific issue on 18 which the district court based its remand was ‘substantially justified’—not whether the ALJ 19 would ultimately deny disability benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 20 2017). 21 Here, the Administrative Law Judge (“ALJ”) erred at step three of the sequential 22 evaluation by failing to discuss plaintiff’s limitations as they related to Listing 14.09. (ECF No. 23 21 at 4-5.) The government argues that the ALJ’s “determination was reasonable based on the 24 totality of the record evidence and applicable law” and that “[t]here was, at least, a ‘genuine 25 dispute’ based in the record.’” (ECF No. 25 at 3.3) 26 //// 27 3 Page number citations such as this are to the page number reflected on the court’s CM/ECF 28 1 However, as articulated in the March 22, 2019 order, the ALJ failed to discuss not just a 2 specific Listing impairment that was supported by evidence, but failed to discuss any Listing 3 impairment. Such a failure constitutes an obvious error. See Radford v. Colvin, 734 F.3d 288, 4 295 (4th Cir. 2013) (ALJ erred where “he provided no explanation other than writing that he 5 ‘considered, in particular,’ a variety of listings, including Listing 1.04A, and noting that state 6 medical examiners had also concluded ‘that no listing was met or equaled.’”). Moreover, that 7 was not the ALJ’s only error. 8 The ALJ also erred by rejecting plaintiff’s medically supported subjective testimony 9 without a clear and convincing reason. (ECF No. 21 at 7.) “Where a claimant’s testimony is 10 medically supported, the ALJ ‘can reject the claimant’s testimony about the severity of his symptoms 11 only by offering specific, clear and convincing reasons for doing so.’” See Moore v. Commissioner 12 of Social Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (internal citation omitted). Here, the court 13 found the ALJ’s reasoning “far from clear or convincing.” (ECF No. 21 at 7.) 14 Under these circumstances, the court cannot find that the government’s position was 15 substantially justified. See Tacas v. Astrue, No. CIV 09-2144 EFB, 2011 WL 5984007, at *2 16 (E.D. Cal. Nov. 29, 2011) (citing Gutierrez, 274 F.3d at 1259-60) (“when the government violates 17 its own regulations, fails to acknowledge settled circuit case law, or fails to adequately develop 18 the record, its position is not substantially justified.”). 19 B. Plaintiff’s Fee Request 20 The EAJA expressly provides for an award of “reasonable” attorney fees. 28 U.S.C. § 21 2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since 22 1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost 23 of living.4 See 28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir. 24 2001); Atkins, 154 F.3d at 987. Determining a reasonable fee “‘requires more inquiry by a 25 4 In accordance with the decision in Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 26 2005), and Ninth Circuit Rule 39-1.6, the Ninth Circuit Court of Appeals maintains a list of the statutory maximum hourly rates authorized by the EAJA, as adjusted annually. The rates may be 27 found on the Court’s website. See http://www.ca9.uscourts.gov. Here, plaintiff’s requested attorney rate is equal to, or lower than, the statutory maximum rates established by the Ninth 28 1 district court than finding the product of reasonable hours times a reasonable rate.’” Atkins, 154 2 F.3d at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (internal citations omitted)). 3 The district court must consider “‘the relationship between the amount of the fee awarded and the 4 results obtained.’” Id. at 989 (quoting Hensley, 461 U.S. at 437). 5 Here, after drafting a thorough motion for summary judgment and reply brief, plaintiff 6 successfully obtained a remand for further proceedings. Including the time spent on briefing the 7 EAJA motion, plaintiff’s motion seeks compensation for 65.70 hours of attorney time. (ECF No. 8 24 at 6.) The court finds the hours expended to be reasonable, especially when compared to the 9 time devoted to similar tasks by counsel in like social security appeals coming before this court. 10 See Clark v. Colvin, No. 2:14-CV-0851 DB, 2016 WL 4179803, at *4 (E.D. Cal. Aug. 8, 2016) 11 (finding 67.25 hours to be a reasonable amount of time); Boulanger v. Astrue, No. CIV S-07- 12 0849 DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19, 2011) (finding 58 hours to be a 13 reasonable amount of time); Watkins v. Astrue, No. CIV S-06-1895 DAD, 2011 WL 4889190, at 14 *2 (E.D. Cal. Oct. 13, 2011) (finding 62 hours to be a reasonable amount of time); Vallejo v. 15 Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, at *5 (E.D. Cal. Sept. 20, 2011) (finding 16 62.1 hours to be a reasonable amount of time); see also Costa v. Commissioner of Social Sec. 17 Admin., 690 F.3d 1132, 1137 (9th Cir. 2012) (“District courts may not apply de facto caps 18 limiting the number of hours attorneys can reasonably expend on ‘routine’ social security 19 cases.”). See generally Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“By 20 and large, the court should defer to the winning lawyer’s professional judgment as to how much 21 time he was required to spend on the case; after all, he won, and might not have, had he been 22 more of a slacker.”). 23 Accordingly, after carefully reviewing the record and the pending motion, the court 24 declines to conduct a line-by-line analysis of counsel’s billing entries. See, e.g., Commissioner, 25 I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990) (“the EAJA—like other fee-shifting statutes—favors 26 treating a case as an inclusive whole, rather than as atomized line-items”); Stewart v. Sullivan, 27 810 F. Supp. 1102, 1107 (D. Haw. 1993); Duran v. Colvin, No. 2:11-cv-2978 DAD, 2013 WL 28 5673415, at *2 (E.D. Cal. Oct. 17, 2013). 1 C. Fee Award 2 Plaintiff argues that the Commissioner is mistaken in contending that EAJA fees must be 3 | made payable to plaintiff and not to plaintiff's counsel. (ECF 26 at 7.) However, an attorney fee 4 | award under the EAJA is payable to the litigant and is therefore subject to a government offset to 5 | satisfy any pre-existing debt owed to the United States by the claimant. Astrue v. Ratliff, 560 6 | U.S. 586, 592-93 (2010). 7 Subsequent to the decision in Ratliff, some courts have ordered payment of the award of 8 || EAJA fees directly to plaintiff's counsel pursuant to plaintiff's assignment of EAJA fees, 9 | provided that the plaintiff has no debt that requires offset. See Blackwell v. Astrue, No. CIV 08- 10 1454 EFB, 2011 WL 1077765, at *5 (E.D. Cal. Mar. 21, 2011); Dorrell v. Astrue, No. CIV 09- 11 | 0112 EFB, 2011 WL 976484, at *2-3 (E.D. Cal. Mar. 17, 2011); Calderon v. Astrue, No. 1:08-cv- 12 | 01015 GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 22, 2010); Castaneda v. Astrue, No. EDCV 13 | 09-1850-OP, 2010 WL 2850778, at *3 (C.D. Cal. July 20, 2010). Accordingly, the Court will 14 | incorporate such a provision in this order. 15 CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plaintiff's motion for attorney fees under the Equal Access to Justice Act (ECF No. 26) 18 | is granted; 19 2. Plaintiff is awarded $13,182.11 in attorney fees under 28 U.S.C. § 2412(d); and 20 3. Defendant is directed to determine whether plaintiff's EAJA attorney’s fees are subject 21 | to any offset permitted under the United States Department of the Treasury’s Offset Program and, 22 | if the fees are not subject to an offset, shall cause payment of fees to be made directly to plaintiff. 23 | Dated: August 7, 2019 24 25 26 | DLB: am() UNITED STATES MAGISTRATE JUDGE DB\orders\orders.soc sec\lao2301.eaja.ord * 28