Lazzell v. Astrue

Filing 35

ORDER granting Plaintiff's 28 Motion for Attorneys' Fees. Plaintiff is awarded $5,140.98 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Signed by Judge David G Campbell on 11/30/11.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Matthew Lazzell,

No. CV10-1659-PHX-DGC
Plaintiff,

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vs.

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ORDER

Michael J. Astrue, Commissioner of Social
Security,

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Defendant.

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An administrative law judge (“ALJ”) denied Plaintiff’s application for
supplemental security income, finding Plaintiff not disabled within the meaning of the
Social Security Act. Tr. 23-34. This decision became Defendant’s final decision when
the Appeals Council denied review. Tr. 1-3. Plaintiff then brought an action for judicial
review pursuant to 42 U.S.C. § 405(g). Doc. 1. The Court reversed Defendant’s decision
and remanded for an award of benefits. Doc. 26.
Plaintiff has filed a motion for attorneys’ fees pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412.

Doc. 28.

The motion is fully briefed.

Docs. 28-31, 34. Neither party has requested oral argument. For the reasons that follow,
the Court will grant the motion and award Plaintiff fees in the amount of $5,140.98.
The EAJA “authorizes federal courts to award attorneys’ fees, court costs, and
other expenses when a party prevails against the United States, although fee-shifting is
not mandatory.” Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010). Plaintiff is a

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prevailing party because the Court remanded for an award of benefits. See Gutierrez v.

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Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001).

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attorneys’ fees under the EAJA unless Defendant shows that his position in this case was

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“substantially justified or that special circumstances make an award unjust.”

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28 U.S.C. § 2412(d)(1)(A).

The Court should award reasonable

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Defendant does not contend that an award of fees in this case would be unjust.

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Instead, Defendant argues that denial of benefits was “substantially justified.” Doc. 31,

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at 1. To determine if the Commissioner’s position was substantially justified, the Court

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must focus on the reasonableness of that position in this court and consider any

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procedural issues that led to remand. See Lewis v. Barnhart, 281 F.3d 1081, 1085

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(9th Cir. 2002); Flores v. Shalala, 49 F.3d 562, 566 (9th Cir. 1995); Hardisty, 592 F.3d

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1072, 1079 (declining to extend the EAJA to require review of issues raised by the

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plaintiff but not addressed by the district court). To meet the “substantially justified”

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standard, Defendant’s position need not be “justified to a high degree.”

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Underwood, 487 U.S. 552, 565 (1988). Rather, it need only be “‘justified in substance or

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in the main’ – that is, justified to a degree that could satisfy a reasonable person.” Id.

Pierce v.

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Here, the ALJ committed a fundamental procedural error by improperly rejecting

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the opinion of Plaintiff’s treating physician, Dr. Benjamin, without setting forth “specific,

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legitimate reasons for doing so.”

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849 F.2d 418, 421 (9th Cir. 1988)). The only reason the ALJ gave for rejecting Dr.

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Benjamin’s opinions was that they were “not consistent with the weight of the evidence

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record.” Tr. 32. This Circuit has made clear that “conclusory reasons will not justify an

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ALJ’s rejection of a medical opinion” and that the ALJ must set forth its own

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“interpretations and explain why they, rather than [the treating physician’s], are correct.”

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Doc. 26, at 4 (quoting Regennitter v. Comm’r of Soc. Sec. Admin., 116 F.3d 1294, 1299

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(9th Cir. 1999); Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007)). The Court found the

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ALJ’s actions to be “clearly erroneous.”

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government’s defense of the ALJ’s procedural errors was not substantially justified . . . .”

Doc. 26, at 3-4 (quoting Embrey v. Bowen,

Doc. 26, at 4.

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“It follows a fortiori the

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Shafer v. Astrue, 518 F.3d 1067, 1072 (9th Cir. 2008).
The EAJA provides for an upward adjustment of the $125 per hour rate contained

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in the statute, based on cost-of-living increases.

28 U.S.C. § 2412(d)(2)(A); see

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Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005).

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dispute Plaintiff’s submitted hourly rate of $175.06 for the 18.6 hours of work performed

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in 2010 or an hourly rate of $179.51 for the 10.5 hours of work performed in 2011.

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Doc. 31, at 14-15; Doc. 30-1, at 2.

Defendant does not

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In addition to the cost-of-living adjustment, Plaintiff asks for a fee enhancement.

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The EAJA allows upward adjustments of the hourly rate for special factors, including

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“the limited availability of qualified attorneys for the proceedings involved . . . .”

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28 U.S.C. § 2412(d)(2)(A). The Ninth Circuit has established a test to determine whether

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enhanced hourly rates may be awarded based on this special factor. “Enhanced hourly

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rates based on the special factor of the limited availability of qualified attorneys for the

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proceedings involved may be awarded under EAJA where the attorneys possess

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‘distinctive knowledge’ and ‘specialized skill’ that was ‘needful to the litigation in

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question’ and ‘not available elsewhere at the statutory rate.’” Nadarajah v. Holder,

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569 F.3d 906, 912 (9th Cir. 2009) (internal citations omitted).

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Plaintiff has failed to meet his burden of establishing entitlement to higher fees.

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See Natural Res. Def. Council Inc. v. Winter, 543 F.3d 1152, 1161 (9th Cir. 2008).

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Plaintiff advances the following reasons for a fee enhancement: “Plaintiff’s attorney’s

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work on this case was completed in a timely and efficient manner, requiring substantially

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less time than required by less experienced practitioners in Social Security cases”;

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“Plaintiff’s attorney brought considerable experience to bear in efforts to advance

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Plaintiff’s case”; and “Plaintiff’s counsel faced daunting odds.” Doc. 29, at 7, 10. These

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reasons are insufficient. Plaintiff cites Pirus v. Bowen, 869 F.2d 536 (9th Cir. 1989), as

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an instance where the Ninth Circuit awarded enhanced EAJA fees. Doc. 29, at 9, n.11.

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Pirus is distinguishable because it involved a class action challenging provisions of the

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Social Security Act, whereas the present case is a routine social security disability case.
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Other Courts of Appeals have held that routine disability law is not a specialized area

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warranting an enhanced rate.

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(7th Cir. 1995) (holding “that the area of social security law cannot in itself be considered

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such a specialized area of law practice as to warrant, as a general rule, payment in excess

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of the [statutory] rate”); Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994) (reversing

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enhancement for an attorney’s expertise in a “straightforward social security disability

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case that did not involve particularly difficult or complex issues”); Harris v. Railroad

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Ret. Bd., 990 F.2d 519, 521 (10th Cir. 1990) (holding that “a Social Security specialist

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does not solely by virtue of that expertise fall under the ‘special factor’ exception”).

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Furthermore, the Supreme Court has specifically rejected “work and ability of counsel”

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and “the results obtained” as reasons for fee enhancement, noting that “they are little

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more than routine reasons why market rates are what they are.” Underwood, 487 U.S.

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at 573; see also Natural Res. Def. Council, 543 F.3d at 1160 (“‘Producing high-quality

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work on a short deadline hardly satisfies th[e] standard’ in Pierce of ‘work requiring

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specialized skills or knowledge beyond what lawyers use on a regular basis.’”) (citing

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Role Models Am., Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004)). In sum, Plaintiff has

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not met his burden of showing that his attorney’s distinctive knowledge and specialized

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skill were needful to the litigation, and a fee enhancement on this basis is not warranted.

See, e.g., Raines v. Shalala, 44 F.3d 1355, 1361

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The fee agreement between Plaintiff and Plaintiff’s counsel provides that any

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EAJA fees are assigned to the counsel. Doc. 29-1, at 1. Defendant does not oppose

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Plaintiff’s request that the fees be mailed to Plaintiff’s counsel’s office (Doc. 29, at 11),

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but does oppose Plaintiff’s proposed order (Doc. 28-1) stating that any fee award “is

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assigned to Plaintiff’s counsel.” Doc. 31, at 12. The Court agrees with Defendant that

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such an assignment would violate 31 U.S.C. § 3727, which provides that a transfer or

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assignment of any part of a claim against the United States Government “may be made

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only after a claim is allowed, the amount of the claim is decided, and a warrant for

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payment of the claim has been issued. The assignment shall specify the warrant, must be

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made freely, and must be attested to by 2 witnesses.” 31 U.S.C. § 3727(b). Plaintiff’s
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assignment was executed on August 17, 2010, well before any EAJA claim was allowed

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or the amount decided. The Court will not order that the fees be assigned to Plaintiff’s

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counsel.

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IT IS ORDERED:

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Plaintiff’s motion for attorneys’ fees (Doc. 28) is granted.

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2.

Plaintiff is awarded $5,140.98 pursuant to the Equal Access to Justice Act,

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28 U.S.C. § 2412.
Dated this 30th day of November, 2011.

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