Minton v. Astrue

Filing 30

ORDER granting 27 Motion for Attorney Fees. Plaintiff is awarded $6,772.12 in EAJA fees. Signed by Judge Frederick J Martone on 6/21/12.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Barbara A. Minton,

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Plaintiff,

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vs.

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Michael J. Astrue,
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Defendant.
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CV 11-00461-PHX-FJM
ORDER

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We have before us plaintiff's motion for attorneys' fees (doc. 27), defendant's response
(doc. 28), and plaintiff's reply (doc. 29).

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Plaintiff filed this action challenging the Administrative Law Judge's ("ALJ") denial

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of her application for social security benefits, arguing that the ALJ's errors warranted a

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remand for immediate payment of benefits (doc. 15). In lieu of responding to plaintiff's

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opening brief, defendant filed a motion to remand for further proceedings (doc. 18), which

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plaintiff opposed (doc. 22). In opposing defendant's motion, plaintiff argued that the ALJ's

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errors warranted an immediate award of benefits based on the credit-as-true rule. See

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Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). We granted defendant's motion and

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remanded the action for further proceedings (doc. 23). We found that an award of benefits

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was not warranted because there were outstanding issues that must be addressed on remand

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before a determination of disability could be made. We noted that the ALJ found that

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plaintiff was dependent on cannabis. Because the record contained evidence of drug

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addiction, we concluded that the ALJ would still need to consider "whether [her] drug

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addiction. . . is a contributing factor material to the determination of disability" before a

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finding of disability could be reached. See 20 C.F.R. § 404.1535(a).

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When pursuing attorneys' fees under the Equal Access to Justice Act ("EAJA"), we

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assess the relationship between the fees requested by the prevailing party and the results

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obtained to determine a reasonable fee award. See Atkins v. Apfel, 154 F.3d 986, 988 (9th

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Cir. 1998). The court should decrease the amount of fees awarded "for any portion of the

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litigation in which the party has unreasonably protracted the proceedings." 28 U.S.C. §

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2412(d)(2)(D). We should exclude fees for time unreasonably spent, including "hours that

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are excessive, redundant, or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424,

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434, 103 S. Ct. 1933, 1939-40 (1983). Here, plaintiff initially requested a total of $6,483.18,

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representing 35.9 hours of work at the rate of $180.59 per hour. Defendant does not oppose

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an award of EAJA fees, and does not oppose the reasonableness of the hourly rate. However,

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defendant argues that plaintiff should not be compensated for time spent opposing his motion

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for remand, which would reduce the award by 11 hours.

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Defendant argues that plaintiff's opposition to his motion to remand was unreasonable

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because, given the circumstances of this case, plaintiff should not have expected the court

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to remand for an immediate award of benefits. We agree that plaintiff's expectation of an

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award of benefits was unreasonable. Plaintiff did not challenge the ALJ's finding that

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cannabis dependence was a severe impairment. This finding is relevant to the overall

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question of whether plaintiff is entitled to benefits, because a person is not considered

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disabled "if alcoholism or drug addiction would. . . be a contributing factor material to the

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Commissioner's determination that the individual is disabled." 42 U.S.C. § 423(d)(2)(C); see

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also 20 C.F.R. § 404.1535(a) ("If we find that you are disabled and have medical evidence

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of your drug addiction or alcoholism, we must determine whether your drug addiction or

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alcoholism is a contributing factor material to the determination of disability."). In this case,

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because the ALJ found that plaintiff was not disabled, he never considered the question of

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whether her drug addiction is a contributing factor to that disability. Accordingly, even if
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plaintiff's testimony was credited as true, it was not clear from the record that she would be

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entitled to benefits. See Harman v. Apfel, 211 F.3d 1172, 1180-81 (9th Cir. 2000) (evidence

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of potential alcohol abuse, which "might disqualify [plaintiff] from receiving benefits," was

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one "unanswered question[]" that made district court's remand for further proceedings

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appropriate). Thus, plaintiff should not reasonably have expected that we would remand the

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action for an immediate award of benefits.

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Here, plaintiff essentially treated defendant's motion to remand as a response to her

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opening brief, and responded by filing her reply brief (doc. 22). Defendant, on the other

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hand, waited almost two months after plaintiff's opening brief was filed (and nine months

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after the complaint was filed) to file his motion for remand. Compare Penrod v. Apfel, 54 F.

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Supp. 2d 961, 963 (D. Ariz. 1999) (defendant's contention that plaintiff unnecessarily

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prolonged the proceedings meritless when defendant filed motion to remand "two months

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after" plaintiff's brief) with McLaurin v. Apfel, 95 F. Supp. 2d 111, 115-16 (E.D.N.Y. 2000)

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(plaintiff not entitled to fees for unreasonably rejecting offer to remand made before

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defendant answered the complaint).

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Moreover, plaintiff's continued litigation of this case resulted in a remand more

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beneficial to her than that offered by defendant. Although defendant conceded that errors

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were made, he argued that the ALJ reasonably discounted plaintiff's subjective symptoms.

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We disagreed, ordering the ALJ on remand to "reevaluate the plaintiff's subjective

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symptoms." Order at 13. By litigating this issue, plaintiff prevailed in securing a new

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evaluation of her subjective symptoms. Although she did not succeed in securing immediate

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benefits, she achieved more than she would have had she stipulated to a remand on

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defendant's terms. Thus, although plaintiff should not have reasonably expected a remand

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for immediate award of benefits, we conclude that her opposition to the motion to remand

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brought her some success and did not "unreasonably protract[] the proceedings." 28 U.S.C.

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§ 2412(d)(2)(D).

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Defendant has not otherwise objected to the amount of fees awarded under EAJA,

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other than to remind us this award must be made to the plaintiff, not her counsel. See Astrue
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v. Ratliff, __ U.S. __, 130 S. Ct. 2521, 2524 (2010). Accordingly, we will award fees for the

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full 35.9 hours spent on this action, which at $180.59 per hour totals $6,483.18. Plaintiff also

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requests fees for the additional 1.6 hours she spent replying in support of her motion.

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Because plaintiff has successfully opposed defendant's challenge to the amount of fees, we

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may award this additional amount. See Comm'r, I.N.S. v. Jean, 496 U.S. 154, 163 n.10, 110

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S. Ct. 2316, 2321 n.10 (1990). At the rate of $180.59 per hour for 1.6 hours, that comes to

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an additional $288.94.1

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Accordingly, IT IS ORDERED GRANTING plaintiff's motion for attorneys' fees
(doc. 27). Plaintiff is awarded $6,772.12 in EAJA fees.
DATED this 21st day of June, 2012.

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Plaintiff asked for an additional $469.53. However, dividing this amount by 1.6
hours yields a rate of $293.46 per hour.
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