(SS) Olson v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LORI OLSON, No. 2:18-cv-0475 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. 15.) 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 September 19, 2019, following 22 the filing of a motion for summary judgment by plaintiff and a cross-motion for summary 23 judgment by defendant, the undersigned granted plaintiff’s motion, reversed the decision of the 24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. 25 See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 26 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant 28 1 Commissioner, and remanded this action for further proceedings. (ECF No. 13.) On December 2 18, 2019, plaintiff filed a motion for attorney’s fees. (ECF No. 15.) Defendant has not objected 3 to plaintiff’s request. 4 STANDARDS 5 The EAJA provides that “a court shall award to a prevailing party . . . fees and other 6 expenses . . . incurred by that party in any civil action . . . brought by or against the United States . 7 . . unless the court finds that the position of the United States was substantially justified or that 8 special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gisbrecht v. 9 Barnhart, 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was 10 substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v. 11 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 12 A “party” under the EAJA is defined as including “an individual whose net worth did not 13 exceed $2,000,000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The 14 term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). 15 “The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the 16 prevailing party to the extent that the party ‘unduly and unreasonably protracted’ the final 17 resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 18 2412(d)(1)(C) & 2412(d)(2)(D)). 19 A party who obtains a remand in a Social Security case is a prevailing party for purposes 20 of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has 21 ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence 22 four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.”). “An 23 applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the 24 denial of her benefits is reversed and remanded regardless of whether disability benefits 25 ultimately are awarded.” Gutierrez, 274 F.3d at 1257. 26 ANALYSIS 27 Here, the court finds that plaintiff is the prevailing party, that plaintiff did not unduly 28 delay this litigation, and that there is no reason to believe plaintiff’s net worth exceeded two 1 million dollars when this action was filed. Moreover, as explained below, the court finds that the 2 position of the United States was not substantially justified. 3 A. Substantial Justification 4 “Substantial justification means ‘justified in substance or in the main—that is, justified to 5 a degree that could satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 6 2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the 7 government’s position must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 8 870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United 9 States includes both the government’s litigation position and the underlying agency action.’” 10 Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also 11 Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the 12 government’s decision to defend on appeal the procedural errors committed by the ALJ was 13 substantially justified”). “In determining whether a party is eligible for fees under EAJA, the 14 district court must determine whether the government’s position regarding the specific issue on 15 which the district court based its remand was ‘substantially justified’—not whether the ALJ 16 would ultimately deny disability benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 17 2017). 18 Here, the ALJ erred both with respect to the treatment of plaintiff’s subjective testimony 19 and the medical opinion evidence. (ECF No. 13.) Under these circumstances, the court cannot find 20 that the government’s position was substantially justified. See Tacas v. Astrue, No. CIV 09-2144 21 EFB, 2011 WL 5984007, at *2 (E.D. Cal. Nov. 29, 2011) (citing Gutierrez, 274 F.3d at 1259-60) 22 (“when the government violates its own regulations, fails to acknowledge settled circuit case law, 23 or fails to adequately develop the record, its position is not substantially justified.”). 24 B. Plaintiff’s Fee Request 25 The EAJA expressly provides for an award of “reasonable” attorney fees. 28 U.S.C. § 26 2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since 27 1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost 28 //// 1 of living.3 See 28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir. 2 2001); Atkins, 154 F.3d at 987. Determining a reasonable fee “‘requires more inquiry by a 3 district court than finding the product of reasonable hours times a reasonable rate.’” Atkins, 154 4 F.3d at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983) (internal citations omitted)). 5 The district court must consider “‘the relationship between the amount of the fee awarded and the 6 results obtained.’” Id. at 989 (quoting Hensley, 461 U.S. at 437). 7 Here, after drafting a motion for summary judgment plaintiff successfully obtained a 8 remand for further proceedings. Plaintiff’s fee motion seeks compensation for 27.82 hours of 9 attorney time. (ECF No. 13-3.) The court finds the hours expended to be reasonable, especially 10 when compared to the time devoted to similar tasks by counsel in like social security appeals 11 coming before this court. See Clark v. Colvin, No. 2:14-CV-0851 DB, 2016 WL 4179803, at *4 12 (E.D. Cal. Aug. 8, 2016) (finding 67.25 hours to be a reasonable amount of time); Boulanger v. 13 Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19, 2011) (finding 58 14 hours to be a reasonable amount of time); Watkins v. Astrue, No. CIV S-06-1895 DAD, 2011 WL 15 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62 hours to be a reasonable amount of time); 16 Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, at *5 (E.D. Cal. Sept. 20, 2011) 17 (finding 62.1 hours to be a reasonable amount of time); see also Costa v. Commissioner of Social 18 Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012) (“District courts may not apply de facto caps 19 limiting the number of hours attorneys can reasonably expend on ‘routine’ social security 20 cases.”). See generally Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“By 21 and large, the court should defer to the winning lawyer’s professional judgment as to how much 22 time he was required to spend on the case; after all, he won, and might not have, had he been 23 more of a slacker.”). 24 //// 25 3 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 rates are equal to, or lower than, the statutory maximum rates established by the Ninth 28 1 Accordingly, after carefully reviewing the record and the pending motion, the court 2 declines to conduct a line-by-line analysis of counsel’s billing entries. See, e.g., Commissioner, 3 I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990) (“the EAJA—like other fee-shifting statutes—favors 4 treating a case as an inclusive whole, rather than as atomized line-items”); Stewart v. Sullivan, 5 810 F. Supp. 1102, 1107 (D. Haw. 1993); Duran v. Colvin, No. 2:11-cv-2978 DAD, 2013 WL 6 5673415, at *2 (E.D. Cal. Oct. 17, 2013). 7 C. Fee Award 8 Plaintiff’s counsel argues that pursuant to the retainer agreement plaintiff assigned “any 9 attorneys’ fees awarded as a result of an EAJA fee petition” to plaintiff’s counsel. (Walker Decl. 10 (ECF No. 15-1) at 1.) However, an attorney fee award under the EAJA is payable to the litigant 11 and is therefore subject to a government offset to satisfy any pre-existing debt owed to the United 12 States by the claimant. Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010). 13 Subsequent to the decision in Ratliff, some courts have ordered payment of the award of 14 EAJA fees directly to plaintiff’s counsel pursuant to plaintiff’s assignment of EAJA fees, 15 provided that the plaintiff has no debt that requires offset. See Blackwell v. Astrue, No. CIV 08- 16 1454 EFB, 2011 WL 1077765, at *5 (E.D. Cal. Mar. 21, 2011); Dorrell v. Astrue, No. CIV 09- 17 0112 EFB, 2011 WL 976484, at *2-3 (E.D. Cal. Mar. 17, 2011); Calderon v. Astrue, No. 1:08-cv- 18 01015 GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 22, 2010); Castaneda v. Astrue, No. EDCV 19 09-1850-OP, 2010 WL 2850778, at *3 (C.D. Cal. July 20, 2010). The Court will incorporate 20 such a provision in this order. 21 CONCLUSION 22 Accordingly, IT IS HEREBY ORDERED that: 23 1. Plaintiff’s motion for attorney fees under the Equal Access to Justice Act (ECF No. 15) 24 is granted; 25 2. Plaintiff is awarded $6,057.31 in attorney fees and cost under 28 U.S.C. § 2412(d); and 26 //// 27 //// 28 //// 1 3. Defendant shall determine whether plaintiff’s EAJA attorney’s fees are subject to any 2 offset permitted under the United States Department of the Treasury’s Offset Program and, if the 3 fees are not subject to an offset, shall honor plaintiff’s assignment of EAJA fees and shall cause 4 the payment of fees to be made directly to plaintiff’s counsel pursuant to the assignment executed 5 by plaintiff. 6 DATED: March 24, 2020 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DLB:6 24 DB\orders\orders.soc sec\olson0475.eaja.ord 25 26 27 28