(SS) Milsap v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ELIZABETH IRENE MILLSAP, Case No. 1:22-cv-00462-SKO 10 Plaintiff, ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR 11 v. ATTORNEY FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT 12 KILOLO KIJAKAZI, (Doc. 19) 13 Acting Commissioner of Social Security, 14 Defendant. _____________________________________/ 15 16 After successfully obtaining reversal of an Administrative Law Judge’s (“ALJ”) decision 17 denying her application for Social Security disability benefits, Plaintiff filed a motion for an award 18 of attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”) in the amount of $6,733.66. 19 (See Doc. 19.) On October 12, 2023, the Court ordered Defendant’s opposition, if any, to be filed 20 by no later than October 25, 2023. (Doc. 20.) No opposition was filed; therefore, the motion is 21 deemed unopposed. For the reasons set forth below, Plaintiff’s unopposed motion for EAJA fees is 22 GRANTED. 23 I. BACKGROUND 24 Plaintiff filed this action on April 19, 2022, seeking judicial review of a final administrative 25 decision denying her application for Social Security disability benefits. (Doc. 1.) On July 13, 2023, 26 the Court issued an order reversing the ALJ’s decision and remanding the case for award or benefits 27 based on the ALJ’s failure to properly consider the opinions of the state agency physicians regarding 28 Plaintiff’s moderate mental limitations. (Doc. 17.) 1 On October 11, 2023, Plaintiff filed a motion for EAJA fees, seeking an award of $6,733.66. 2 (Doc. 19.) No opposition has been filed. (See Docket.) It is Plaintiff’s motion for attorney’s fees 3 under the EAJA that is currently pending before the Court. 4 II. LEGAL STANDARD 5 The EAJA provides that “a court shall award to a prevailing party . . . fees and other expenses 6 . . . incurred by that party in any civil action . . . brought by or against the United States . . . unless 7 the court finds that the position of the United States was substantially justified or that special 8 circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gisbrecht v. Barnhart, 9 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was substantially 10 justified or that special circumstances exist to make an award unjust.” Gutierrez v. Barnhart, 274 11 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 term 14 “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). “The 15 statute explicitly permits the court, in its discretion, to reduce the amount awarded to the prevailing 16 party to the extent that the party ‘unduly and unreasonably protracted’ the final resolution of the 17 case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir.1998) (citing 28 U.S.C. §§ 2412(d)(1)(C) & 18 2412(d)(2)(D)). 19 A party who obtains a remand in a Social Security case is a prevailing party for purposes of 20 the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has ever 21 denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence four 22 of § 405(g) . . . , which terminates the litigation with victory for the plaintiff”). “An applicant for 23 disability benefits becomes a prevailing party for the purposes of the EAJA if the denial of her 24 benefits is reversed and remanded regardless of whether disability benefits ultimately are awarded.” 25 Gutierrez, 274 F.3d at 1257. 26 III. ANALYSIS 27 There is no dispute that Plaintiff is the prevailing party in this litigation, as the Court 28 remanded the matter to the ALJ for further proceedings. (See Doc. 17 at 11); see also Gutierrez, 1 274 F.3d at 1257. Moreover, the Court finds that Plaintiff did not unduly delay this litigation, and 2 that Plaintiff’s net worth did not exceed two million dollars when this action was filed. (See Doc. 3 19 at 2.) The Court further finds, as set forth below, that the Commissioner’s position was not 4 substantially justified. See Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (position of the 5 government “includes both the government’s litigation position and the underlying agency action 6 giving rise to the civil action”). 7 A. The Commissioner’s Position was Not Substantially Justified. 8 Plaintiff asserts, and the Commissioner does not contest, that the Commissioner’s underlying 9 administrative decision and litigation position was not substantially justified. (Doc. 19 at 5–6.) 10 Substantial justification means “justified in substance or in the main—that is, justified to a degree 11 that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal 12 quotation marks and citation omitted). In other words, the government’s position must have a 13 reasonable basis both in fact and in law. Id. In considering whether the position of the government 14 is substantially justified, the position of the United States includes “both the government’s litigation 15 position and the underlying agency action giving rise to the civil action.” Meier, 727 F.3d at 870. 16 In the social security context, it is the ALJ’s decision that is considered the “action or failure 17 to act” by the agency. Id. Under the substantial justification test, the court first considers the ALJ’s 18 decision and then considers the government’s litigation position in defending that decision. Id. 19 Where the underlying ALJ decision is not substantially justified, a court need not address whether 20 the Commissioner’s litigation position was justified. Id. at 872 (citing Shafer v. Astrue, 518 F.3d 21 1067, 1071 (9th Cir. 2008) (“The government’s position must be substantially justified at each stage 22 of the proceedings” (internal quotation marks and citation omitted)). 23 Pursuant to Meier, determining whether the agency’s position was substantially justified 24 requires first examining the ALJ’s decision for substantial justification. 727 F.3d at 870. Here, as 25 detailed in the Court’s prior order, the ALJ erred in failing to address or account for Plaintiff’s 26 moderate mental limitations as opined by the state agency physicians, the opinions of whom the 27 ALJ found persuasive. (See Doc. 17 at 7–10.) An ALJ’s failure to incorporate into the RFC the 28 moderate mental limitations they found is not a substantially justified position. See, e.g., Smith v. 1 Berryhill, No. 17-CV-2108-CAB-RNB, 2019 WL 2234068, at *2 (S.D. Cal. Mar. 14, 2019); 2 Kuharski v. Colvin, No. 2:12-CV-1055 AC, 2015 WL 1530507, at *4 (E.D. Cal. Apr. 3, 2015). 3 Moreover, the Commissioner’s failure to oppose Plaintiff’s fee request is tantamount to a 4 concession that the Commissioner’s position was not substantially justified. See Gwaduri v. I.N.S., 5 362 F.3d 1144, 1146 (9th Cir. 2004) (“[W]e do not generally favor requiring judges in fee 6 application proceedings to search out and research arguments that the other side does not make or 7 sua sponte to initiate an opposition to a fee request where none is offered by the party affected, at 8 least in the absence of a showing of injustice or hardship . . . It is well-within our discretion to 9 determine that the government’s lack of timely opposition is tantamount to a concession that its 10 position in the litigation was not substantially justified.”) (citations omitted). 11 As the ALJ’s underlying decision was not substantially justified, the Court need not address 12 whether, under the second part of the substantial justification test, the Commissioner’s litigation 13 position was justified. Meier, 727 F.3d at 872 (citing Shafer, 518 F.3d at 1071). The Court therefore 14 finds that Plaintiff is entitled to an award of fees pursuant to the EAJA. 15 B. Plaintiff’s Requested Fees are Reasonable 16 Plaintiff seeks a total award of $6,733.66, comprised of 28.6 hours in attorney time. (See 17 Doc. 19 at 4; Doc. 19-1.) Defendant did not file an opposition to this request. (See Docket.) The 18 EAJA provides for an award of “reasonable” attorney fees. 28 U.S.C. § 2412(d)(2)(A). By statute, 19 hourly rates for attorney fees under EAJA are capped at $125 per hour, but district courts are 20 permitted to adjust the rate to compensate for increases in the cost of living.1 28 U.S.C. § 21 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir. 2001); Atkins, 154 F.3d at 987. 22 Determining a reasonable fee “requires more inquiry by a district court than finding the ‘product of 23 reasonable hours times a reasonable rate.’” Atkins, 154 F.3d 988 (quoting Hensley v. Eckerhart, 24 461 U.S. 424, 434 (1983)). The district court must consider “the relationship between the amount 25 of the fee awarded and the results obtained.” Id. at 989. 26 1 Pursuant to Thangaraja, 428 F.3d at 876-77, and the Ninth Circuit Rule 39-1.6, the Ninth Circuit maintains a list of 27 the statutory maximum hourly rates authorized under the EAJA, as adjusted annually to incorporate increases in the cost of living. The rates are found on that court’s website: https://www.ca9.uscourts.gov/attorneys/statutory-maximum- 28 rates/. Plaintiff requests an hourly rate of $234.95 for work performed in 2022 and $242.78 for attorney work performed 1 Here, Plaintiff’s attorney obtained a positive outcome for Plaintiff in that the Court remanded 2 the matter for further administrative proceedings. (See Doc. 17.) There is no indication that a 3 reduction of the award is warranted due to any substandard performance by Plaintiff’s counsel as 4 counsel secured a successful result for Plaintiff. Nor is there any evidence that Plaintiff’s counsel 5 engaged in any dilatory conduct resulting in delay 6 The claimed total of 28.6 hours in attorney time represents a reasonable amount of time for 7 an attorney to expend on this particular matter, see, e.g., Vallejo v. Astrue, No. 2:09-cv-3088 KJN, 8 2011 WL 4383636, at *4 (E.D. Cal. Sept. 20, 2011) (declining to “conduct a line-by-line analysis” 9 of billing entries to determine all 62.6 hours of attorney time spent on the litigation were justified), 10 and are well within the limit of what would be considered a reasonable amount of time spent on this 11 action when compared to the time devoted to similar tasks by counsel in like Social Security appeals 12 before this court, Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (noting 13 “[m]any district courts have noted that twenty to forty hours is the range most often requested and 14 granted in social security cases”) (citing Patterson v. Apfel, 99 F. Supp. 2d 1212, 1214 n.2 (C.D. 15 Cal. 2000) (collecting district court cases)); see also Thompson v. Colvin, No. 2:12-cv-01850-AC, 16 2015 WL 1767733, at *2 (E.D. Cal. Apr. 16, 2015) (finding 63.4 hours to be reasonable); Boulanger 17 v. Astrue, 2:07-cv-0849-DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19, 2011) (finding 58 hours 18 to be a reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, 19 at *5 (E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be reasonable). 20 Plaintiff will be awarded EAJA fees for 28.6 hours in attorney time spent on the litigation, 21 for a total EAJA award in the amount of $6,733.66. 22 IV. CONCLUSION 23 For the reasons set forth above, IT IS HEREBY ORDERED that Plaintiff’s unopposed 24 motion for EAJA fees is GRANTED in the amount of $6,733.66. 25 IT IS SO ORDERED. 26 27 Dated: November 6, 2023 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 28