Garcia v. Astrue

Filing 52

ORDER that Plaintiff's Motion for Award of Attorney's Fees under the Equal Access to Justice Act (Doc. 47 ) is GRANTED and that Plaintiff is awarded $10,065.47 in attorney's fees pursuant to the Equal Access to Justice Act, 28 U. S.C. § 2412. IT IS FURTHER ORDERED that the government shall mail the attorney's fees award (payable to Plaintiff) to Plaintiff's counsel, Mark Caldwell, Caldwell & Ober, PLLC, 1940 East Camelback Road, Suite 150, Phoenix, Arizona 85016. Signed by Magistrate Judge Bridget S Bade on 8/6/2013.(KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sherrie Rena Garcia,

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No. CV-11-1193-PHX- BSB

Plaintiff,

ORDER

vs.
Carolyn W. Colvin,
Commissioner of Social Security,

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Defendant.

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Plaintiff Sherrie Rena Garcia (Plaintiff) has filed a Motion for Award of

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Attorney’s Fees Pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412.

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(Doc. 47.) Defendant, the Commissioner of the Social Security Administration (the

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government), opposes this motion. (Doc. 50.) For the reasons set forth below, the Court

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grants the motion and awards fees to Plaintiff in the amount of $10,065.47.

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I. Procedural History

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On October 15, 2007, Plaintiff applied for Disability Insurance Benefits under

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Title II and Title XVI of the Social Security Act (the Act), 42 U.S.C. § 401-434.

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(Tr. 15.)1 Plaintiff alleged disability with an onset date of September 1, 2002. (Id. at 32.)

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Plaintiff’s application was denied at the initial level of administrative review. After a

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Citations to “Tr.” are to the administrative record located at docket 30.
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hearing, on December 30, 2009, an Administrative Law Judge (ALJ) denied Plaintiff’s

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application for benefits. (Id. at 5-22) This decision became the final decision of the

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Commissioner of Social Security when the Social Security Appeals Council denied

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Plaintiff’s request for review of the ALJ’s decision. (Id. at 1-3.)

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Plaintiff then brought this action pursuant to 42 U.S.C. § 405(g) for judicial review

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of the Commissioner’s final decision. (Doc. 1.) This Court issued an order on January

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23, 2013, remanding for further proceedings because it found that the ALJ erred by

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failing to find that Plaintiff’s fibromyalgia was a severe impairment within the meaning

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of the regulations, and by terminating the evaluation of Plaintiff’s case at step two of the

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sequential evaluation process.2 (Doc. 45 at 6, 8, 10.)

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Plaintiff subsequently filed the pending motion requesting $9,604.67 in attorney’s

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fees. (Doc. 47.) In her Reply, Plaintiff seeks an additional $460.80 in attorney’s fees for

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time spent preparing her Reply. (Doc. 51.)

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should be denied because its position was substantially justified.

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alternatively argues that amount of fees should be reduced.

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II.

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The government argues that the motion
The government

Attorney’s Fees under the EAJA
In any action brought by or against the United States, the EAJA provides that “a

court shall award to a prevailing party other than the United States fees and other
expenses . . . unless the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A)
(emphasis added); see Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1988) (stating
that the EAJA creates a presumption that fees will be awarded to the prevailing party
unless the government establishes that its position was “substantially justified”). The
government bears the burden of establishing substantial justification. Gutierrez v.
Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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Although Plaintiff’s motion refers to two orders that were not issued in this case
(Doc. 47 at 2, referring to March 11, 2011 order remanding for an award of benefits and
to a June 24, 2011 order denying the government’s motion for reconsideration), her
supporting brief refers to the relevant order (Doc. 45) remanding this matter for further
proceedings.
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“Substantially justified means justified in substance or in the main — that is,

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justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487

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U.S. 552, 565 (1988) (internal citations omitted). A substantially justified position must

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have a reasonable basis both in law and fact. Id “The ‘position of the United States’

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includes both the government’s litigation position and the underlying agency action

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giving rise to the civil action.” Meier v. Colvin, 2013 WL 3802382, at *1 (9th Cir. Jul.

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23, 2013). The EAJA specifically provides that, “‘[t]he position of the United States’

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means, in addition to the posture taken by the United States in the civil action, the action

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or failure to act by the agency upon which the civil action is based.” 28 U.S.C.

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§ 2412(d)(2)(D).

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In the Social Security context, the Ninth Circuit treats the ALJ’s decision as the

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“action or failure to act by the agency upon which the civil action is based.” Meier, 2013

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WL 3802382, at *2. Thus, when applying the substantial justification test, the court

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determines “(1) whether the [ALJ] was substantially justified in taking [the] original

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action, and (2) whether the government was substantially justified in defending the

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validity of the action in court.” Gutierrez, 274 F.3d at 1258; see also Meier, 2013 WL

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3802382, at *3 (“Applying the substantial justification test [in the Social Security

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context, the court] first consider[s] the underlying agency action, which . . . is the

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decision of the ALJ. [The court] then considers the government’s litigation position.”).

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III. Analysis

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A. Prevailing Party

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The Court must first determine whether Plaintiff qualifies as a prevailing party

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under the EAJA. A plaintiff is a prevailing party if he or she succeeds on “any significant

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issue that achieves some of the benefit sought in bringing the suit.” Penrod v. Apfel, 54

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F. Supp. 2d 961, 963 (D. Ariz. 1999) (citing Tex. State Teachers Ass’n. v. Garland Indep.

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School Dist., 489 U.S. 782, 791-92 (1989)). A claimant who obtains a court order

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remanding a Social Security case to the Commissioner either for further proceedings or

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for an award of benefits is a prevailing party under the EAJA. Shalala v. Schaefer, 509
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U.S. 292, 300-01 (1993). Here, the parties do not dispute that Plaintiff is a prevailing

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party because the Court remanded this matter for further proceedings. See Gutierrez, 274

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F.3d at 1257 (“An applicant for disability benefits becomes a prevailing party for

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purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of

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whether disability benefits are ultimately awarded.”).

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B.

Underlying Agency Conduct

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The parties dispute whether the ALJ’s decision was substantially justified. Here,

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the order remanding this matter was based on the Court’s conclusion that the ALJ erred

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by failing to find fibromyalgia was a severe impairment within the meaning of the

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regulations, and by terminating evaluation of Plaintiff’s case at step two of the sequential

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evaluation process. (Doc. 45 at 6, 8, 10.) The Court concluded that “[b]ecause issues

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remain regarding Plaintiff’s residual functional capacity and her ability to perform other

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work existing in significant numbers in the national economy, this matter must be

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remanded to the Commissioner for further administrative proceedings.” (Id. at 11.)

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In response to Plaintiff’s request for attorney’s fees, the government argues that

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the long intervals between Plaintiff’s medical treatment support the ALJ’s determination

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that Plaintiff’s fibromyalgia was not severe. (Doc. 50 at 4). The government raised this

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same argument in its Opposition to Plaintiff’s Opening Brief. (Doc. 40 at 10-11.) The

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Court rejected this argument explaining that because the ALJ did not rely on this

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rationale in support of her findings, the Court could not affirm the ALJ’s decision based

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on that evidence. (Doc. 45 at 8 n.5) The government reiterates arguments from its

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opposition brief and does not present any new arguments in support of the ALJ’s

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decision. Thus, the government has not met its burden of establishing that the ALJ’s

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position was substantially justified. See Eames v. Bowen, 864 F.2d 251, 252, (2d Cir.

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1988) (the government must make a “strong showing” to carry its burden).

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C.

Litigation Position

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Because the government’s underlying position was not substantially justified, the

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Court need not address whether the government’s litigation position was justified. Meier,

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2013 WL 3802382, at *4 (citing Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008)

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(“The government’s position must be substantially justified at each stage of the

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proceedings.”)). Moreover, even if the Court considered the government’s position in

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this litigation, the Court would find that it was not substantially justified. See Sampson v.

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Chater, 103 F.3d 918, 922 (9th Cir. 1996) (stating that “[i]t is difficult to imagine any

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circumstance in which the government’s decision to defend its actions in court would be

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substantially justified, but the underlying administrative decision would not.”). The

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government’s defense of the ALJ’s decision mainly restates its arguments that the Court

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previously rejected in its order remanding this matter for further proceedings. In view of

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the errors in the ALJ’s analysis, the Court cannot find that the government was

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substantially justified in defending the ALJ’s determination in this case. Accordingly, the

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Court will award Plaintiff attorney’s fees under the EAJA.

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IV.

Award of Attorney’s Fees

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Plaintiff’s counsel has filed an affidavit and an itemized statement of attorney’s

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fees showing that he worked 54.7 hours on this case and that the attorney’s fees total

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$10,065.47. (Docs. 49, Ex. 1; Doc. 51.) The amount of fees requested is based on the

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following hourly rates and hours of work: (1) 2011, hourly rate $180.59 and 4.5 hours;

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(2) 2012, hourly rate $184.32 and 44.6 hours; and (3) 2013, hourly rate $184.32 and 5.6

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hours. (Docs. 49, Ex. 1; Doc. 51.) The government contends that courts have found no

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more than forty hours to be the typical number of hours spent on social security appeals

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and that, because Plaintiff’s counsel apparently relied on his brief filed in the underlying

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administrative action to prepare the opening brief in this proceeding, the Court should

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reduce the hours billed by an unspecified number of hours. (Doc. 50 at 5-6.)

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Plaintiff argues that the time spent on this case was reasonable and that her request

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for attorney’s fees comports with the amount of fees awarded in other social security
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cases. (Doc. 4-8.) Plaintiff cites Costa v. Commr. of Soc. Sec Admin., 690 F.3d 1131,

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1134 n.1 (9th Cir. 2012), in which the Ninth Circuit faulted the district court for

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seemingly applying what it perceived as a district-wide rule setting forty hours as the

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upper limit for hours billed in social security cases and reducing a fee award with an “eye

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toward getting the number of hours down to forty rather than based on the number of

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hours that was reasonable for the legal service provided.” Id. The Ninth Circuit cited to

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its decision in Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008), in

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which it opined that “[b]y and large, the court should defer to the winning lawyer’s

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professional judgment as to how much time he was required to spend on the case.” The

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Moreno decision further stated that due to the district court’s familiarity with the case, it

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could exercise its discretion to impose slight reductions of no more than ten percent

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without specific explanation, but that the court must clearly explain larger reductions. Id.

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Here, the government objects to 25.2 hours that counsel billed for preparing the

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opening brief in this case. (Doc. 50 at 6.) The government contends that the opening

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brief contains nearly the same arguments that Plaintiff included in her brief submitted to

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the Appeals Council.

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attorney’s fees for work performed prior to the time that the complaint was filed in this

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Court. (Doc. 50 at 6 (citing Melkonyan v. Sullivan, 501 U.S. 89, 94 (1991).) Although

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the two briefs are similar, the opening brief includes additional factual and procedural

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information.

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reducing the number of hours. The Court finds that Plaintiff’s attorney spent a reasonable

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number of hours working on this matter. See Pierce v. Underwood, 487 U.S. 552, 571

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(1988) (the district court has discretion to determine a reasonable fee award); see also 28

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U.S.C. § 2412(b). Thus, the Court will consider the appropriate hourly rate.

The government asserts that Plaintiff should not be awarded

The Court does not find the briefs sufficiently duplicative to warrant

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The EAJA limits attorney’s fees to $125.00 per hour “unless the court determines

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that an increase in the cost of living or a special factor, such as the limited availability of

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qualified attorneys for the proceeding involved, justifies a higher fee.”

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§ 2412(d)(2)(A). The Supreme Court has suggested that an increase based on the cost of
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28 U.S.C.

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living is “next to automatic.” Meyer v. Sullivan, 958 F.2d 1029, 1035 n.9 (11th Cir.

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1992) (quoting Pierce, 487 U.S. at 571 (1988)).

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determined by multiplying the base EAJA rate ($125.00) by the current Consumer Price

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Index for all Urban Consumers (CPI-U) and then dividing the product by the CPI-U in

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the month that the cap was imposed ($155.70). See Sorenson v. Mink, 239 F.3d 1140,

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1148 (9th Cir. 2001) (citing Ramon-Sepulveda v. INS, 863 F.2d 1458, 1463) (9th Cir.

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1988)). Plaintiff has calculated the attorney’s fees award based on hourly rates that are

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slightly less than or equal to the statutory maximum hourly rate under the EAJA. See

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‘Statutory Maximum Rates Under the Equal Access to Justice Act,” available at

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http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited Aug. 6,

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2013).3

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$10,065.47.

The cost of living adjustment is

Accordingly, the Court awards Plaintiff attorney’s fees in the amount of

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Finally, Plaintiff requests that the Court order that “any check be sent to Plaintiff’s

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counsel’s office.” (Doc. 48 at 10.) The government does not object to this request.

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(Doc. 50.) In Astrue v. Ratliff, 560 U.S. ___, 130 S. Ct. 2521 (2010), the Supreme Court

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held that EAJA fees are payable to the prevailing party, not his attorney. In so holding,

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the Court noted the “practical reality that attorneys are the beneficiaries and, almost

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always, the ultimate recipients of the fees that the statute awards to the ‘prevailing

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part[ies]’” because of “nonstatutory (contractual and other assignment-based) rights that

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typically confer upon the attorney the entitlement to payment of the fees award the statute

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confers on the prevailing litigant.” Id. at 2529 (quoting Venegas v. Mitchell, 495 U.S. 82,

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86 (1990)).

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if . . . statutory fees language like that in . . . EAJA provide[d] attorneys with a statutory

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right to direct payment of awards.” Id. Thus, although Ratliff clarifies that EAJA awards

The Court further noted that such “arrangements would be unnecessary

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The applicable statutory maximum hourly rates under the EAJA, adjusted for
increases in the cost of living, are as follows: first half of 2013 - $186.55; 2012 - $184.32;
and 2011 - $180.59.

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of attorney’s fees are payable directly to the prevailing party, it does not preclude the

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contractual assignment of the fee award to Plaintiff’s attorney.4 In view of Ratliff, the

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Court declines to order direct payment to Plaintiff’s attorney. However, the Court will

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direct the government to mail the attorney’s fee award, made payable to Plaintiff, to the

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office of Plaintiff’s attorney.

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Award of Attorney’s Fees under the

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Equal Access to Justice Act (Doc. 47) is GRANTED and that Plaintiff is awarded

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$10,065.47 in attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C.

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§ 2412.

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IT IS FURTHER ORDERED that the government shall mail the attorney’s fees

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award (payable to Plaintiff) to Plaintiff’s counsel, Mark Caldwell, Caldwell & Ober,

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PLLC, 1940 East Camelback Road, Suite 150, Phoenix, Arizona 85016.
Dated this 6th day of August, 2013.

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See Brown v. Astrue, 271 Fed. Appx. 741, 744 (10th Cir. 2008) (stating that “the
private contractual arrangement between [Plaintiff] and his counsel [is] a collateral matter
that the [Court] need not address when considering the EAJA fees motion.”).

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