Mendez v. Colvin

Filing 39

ORDER: Plaintiff's Application for Attorney Fees Under the Equal Access to Justice Act 29 is granted only for fees incurred through September 25, 2014, and is otherwise denied. Plaintiff is awarded attorneys' fees in the amount of $ ;6,068.75. IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Plaintiff in the amount of $6,068.75 for attorneys' fees against Defendant, with interest at the federal judgment rate of 1.31 % per annum from the date of entry of judgment. Signed by Senior Judge Neil V Wake on 10/06/2017. (REK)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Brenda S. Mendez,
Plaintiff,

10
11

No. CV-13-00838-PHX-NVW
ORDER

v.

12
13

Commissioner of Social Security,
Defendant.

14
15
16

Before the Court is Plaintiff’s Application for Attorney Fees Under the Equal

17

Access to Justice Act (Doc. 32). Plaintiff seeks award of her attorney fees incurred in

18

this Court and on appeal. Defendant does not object to Plaintiff obtaining all of the

19

requested fees for her attorney’s district court work, but does object to Plaintiff’s request

20

for attorney’s fees for work on her unsuccessful appeal to the U.S. Court of Appeals for

21

the Ninth Circuit.

22

On September 25, 2014, the Court vacated the final decision of the Commissioner

23

of Social Security and remanded this case for further administrative proceedings. (Doc.

24

21.) The Court found that the ALJ erred in multiple, specific ways in weighing medical

25

source evidence and concluded, “[T]he ALJ’s explanation of her weighing of medical

26

source evidence makes it impossible to determine whether it is supported by substantial

27

evidence, but it is plainly not free from legal error.” (Id. at 8.) The Court also found the

28

1

ALJ erred in evaluating Plaintiff’s credibility in multiple, specific ways and concluded:

2

“As with weighing medical source evidence, the ALJ’s rambling explanation of her

3

credibility determination is not free from error and fails to show that it is supported by

4

substantial evidence.” (Id. at 10.) Further, the Court found the ALJ erred in weighing a

5

third-party function report because she failed to give reasons germane to the witness for

6

discounting it. (Id. at 11.) Finally, the Court found that the ALJ failed to obtain reliable

7

vocational information to decide whether Plaintiff’s impairments prevent her from

8

performing other work that exists in the national economy. (Id. at 14.) The vocational

9

expert opined that a person limited to simple, low-stress, not fast-paced work could

10

perform certain jobs, but then admitted he had no information or experience from which

11

he could conclude that those jobs involved simple, low-stress, and not fast-paced work.

12

In its September 25, 2014 order, the Court denied Plaintiff’s request that this case

13

be remanded for award of benefits without further proceedings. A case may not be

14

remanded for award of benefits unless three requirements are satisfied:

18

(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose; (2) the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether claimant
testimony or medical opinion; and (3) if the improperly discredited
evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand.

19

Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The test incorporates the

20

requirement that “there are no outstanding issues that must be resolved before a

21

determination of disability can be made.” Id. at n.26. “Where there is conflicting

22

evidence, and not all essential factual issues have been resolved, a remand for an award

23

of benefits is inappropriate.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

24

1101 (9th Cir. 2014). Even in the “rare circumstances” in which all three elements of the

25

test are met, the decision whether to remand a case for additional evidence or simply to

26

award benefits is discretionary.

27

September 25, 2014 order found that “the record is not fully developed regarding

15
16
17

Id. at 1101-02.

28
-2-

Applying the Garrison test, the

1

Plaintiff’s residual functional capacity and whether jobs exist in significant numbers in

2

the national economy that Plaintiff can perform.” (Doc. 21 at 15.)

3

Although the September 25, 2014 order vacated the ALJ’s unfavorable decision,

4

Plaintiff appealed it, arguing that a remand for computation of benefit was warranted. On

5

appeal, the Ninth Circuit disagreed with Plaintiff:

6
7
8
9
10
11
12

The district court did not abuse its discretion in remanding for further
proceedings, because there are outstanding issues that must be resolved
before a determination of disability can [b]e made. Benecke v. Barnhart,
379 F.3d 587, 590, 593 (9th Cir. 2004). Here, the record presents
“conflicting evidence, and not all essential factual issues have been
resolved” by the ALJ, including (1) assessing Mendez’s credibility, (2)
weighing the opinions of medical providers, and (3) incorporating
Mendez’s residual functional capacity into the job descriptions presented
by the vocation expert.
(Doc. 32-1 at 18.)

13

Upon motion for attorney’s fees pursuant to the Equal Access to Justice Act

14

(“EAJA”), a prevailing party is entitled to attorney’s fees “unless th[is] court finds that

15

the position of the United States was substantially justified or that special circumstances

16

make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The Supreme Court has defined

17

“substantially justified” as “justified to a degree that could satisfy a reasonable person.”

18

Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government bears the burden of

19

showing that its position was substantially justified. Gonzales v. Free Speech Coalition,

20

408 F.3d 613, 618 (9th Cir. 2005). But a “request for attorney’s fees should not result in

21

a second major litigation.” Pierce, at 563 (quoting Hensley v. Eckerhart, 461 U.S. 424,

22

437 (1983)); accord Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017).

23

Defendant does not dispute that Plaintiff is a prevailing party and is entitled to

24

attorney’s fees for work that resulted in this Court vacating the ALJ’s hearing decision

25

even though Plaintiff did not obtain all of the relief sought in this Court. Defendant

26

contends a fee award may be reduced based on the degree of success in obtaining the

27
28
-3-

1

relief sought and urges the Court to deny Plaintiff only the fees incurred pursuing an

2

unsuccessful appeal.

3

Plaintiff contends that all time spent on a case is compensable as long as the

4

attorney’s actions are reasonable. Plaintiff asserts, “It was reasonable to argue that

5

Mendez should not be countenanced to wait another several years and engage in further

6

proceedings when she provided relevant and material evidence of disability, which

7

evidence was not properly considered by the ALJ.” (Doc. 38 at 8.) However, the

8

mandate from the Ninth Circuit denying her appeal from the September 25, 2014 order

9

did not issue until February 10, 2017.

It was not reasonable to spend more time

10

appealing denial of award of benefits than it likely would have taken for further

11

administrative proceedings on remand. Moreover, it was not reasonable to seek remand

12

for award of benefits where there were multiple outstanding issues to be resolved before a

13

determination of disability could be made. Defendant was substantially justified in

14

opposing Plaintiff’s request for remand for award of benefits both in this Court and

15

before the Ninth Circuit.

16

IT IS THEREFORE ORDERED that Plaintiff’s Application for Attorney Fees

17

Under the Equal Access to Justice Act (Doc. 29) is granted only for fees incurred through

18

September 25, 2014, and is otherwise denied. Plaintiff is awarded attorneys’ fees in the

19

amount of $6,068.75.

20

IT IS FURTHER ORDERED that the Clerk enter judgment in favor of Plaintiff in

21

the amount of $6,068.75 for attorneys’ fees against Defendant, with interest at the federal

22

judgment rate of 1.31 % per annum from the date of entry of judgment.

23

Dated this 6th day of October, 2017.

24
25
26
27
28
-4-