Owens v. Colvin

Filing 29

ORDER granting 27 Plaintiff's Motion for an Award of Attorney's Fees under the EAJA in the amount of $6,150.15. This award shall be payable directly to Plaintiff and is subject to offset to satisfy any pre-existing debt that Plaintiff owes the United States pursuant to Astrue v. Ratliff, 560 U.S. 586, 594 (2010). Signed by Senior Judge James A Teilborg on 7/26/17.(EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lorrie Owens,

No. CV-16-00970-PHX-JAT

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff Lorrie Owens’s Motion for Attorneys’ Fees

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pursuant to the Equal Access to Justice Act (“EAJA”). (“Motion,” Doc. 27). Defendant,

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Commissioner of Social Security Administration, has filed her Response (Doc. 28).

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Having considered the parties’ filings, the Court now rules on the Motion.

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I.

Background

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Alan Owens applied for Social Security disability benefits in January 2010.

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(Doc. 24 at 1). The Administrative Law Judge (“ALJ”) initially denied this claim, only to

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be reversed by the Social Security Administration (“SSA”) Appeals Council. (Id.). The

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ALJ denied Mr. Owens’s benefits a second time in March 2014, but he died before that

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decision could be appealed. (Doc. 1 at 1-2). Plaintiff, Mr. Owens’s surviving spouse,

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appealed the ALJ’s decision to this court claiming: “1) the [ALJ] did not properly

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discredit the claimant’s subjective symptom testimony; and 2) the ALJ did not properly

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discredit certain treating medical opinions.” (Doc. 25 at 1).

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The Court found three of the ALJ’s six proffered reasons for discrediting

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claimant’s reported symptoms were not supported by the evidence. (Id. at 3–5). These

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improper reasons included: (1) that “claimant had minimal treatment” and received only

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“routine, conservative, and non-emergency treatment”; (2) that “claimant’s treatment was

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limited to conservative treatment and follow-up care, avoidance of caffeine and

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prescription medications”; and (3) that “Dr. Goodell, the claimant’s neurologist

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reported . . . that if the claimant had a low stress environment he would be able to work.”

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(Id.).

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Also, the Court found that the ALJ gave potentially invalid reasons for not

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crediting the testimony of three of four medical sources. (Id. at 8–9). Furthermore, the

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Court found that this error “call[ed] into question the ultimate conclusion” and was

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therefore “not harmless.” (Id. at 9).

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Based on these reasons, the Court reversed the ALJ’s decision and remanded for

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further proceedings. (Id.). After the reversal, Plaintiff filed the current Motion requesting

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attorneys’ fees and costs under the EAJA. (Doc. 27). Defendant’s Response states that

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they “ha[ve] no objection to [Plaintiff’s] request and will defer to the Court’s assessment

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of the matter.” (Doc. 28 at 1).

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II.

Legal Standard

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The EAJA allows “a prevailing party other than the United States fees and other

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expenses . . . incurred by that party in any civil action . . . unless the court finds that the

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

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make an award unjust.” 28 U.S.C. § 2412(d)(1)(A) (2012). An applicant for disability

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benefits becomes a prevailing party for the purposes of the EAJA if the denial of her

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benefits is reversed and remanded regardless of whether disability benefits are ultimately

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awarded. Shalala v. Schaefer, 509 U.S. 292, 300–02 (1993).

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The “position of the United States” includes both its litigating position and the

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

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28 U.S.C. § 2412(d)(2)(D). For this position to be substantially justified, it must be

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“justified in substance or in the main–that is, justified to a degree that could satisfy a

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reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (holding that

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substantially justified means having a reasonable basis both in law and fact). In EAJA

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actions, the government bears the burden of proving that its position was substantially

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justified. Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005).

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When analyzing the government’s position for substantial justification, the Court’s

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inquiry should be focused on the issue that was the basis for remand and not the merits of

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Plaintiff’s claim in its entirety or the ultimate disability determination. Flores v. Shalala,

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49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052

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(9th Cir. 1998) (“The government’s position must be substantially justified at each stage

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of the proceedings.” (citation and quotation marks omitted)).

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III.

Analysis

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Defendant does not oppose Plaintiff’s request for attorneys’ fees. (Doc. 28 at 1).

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The Court could “treat the government’s non-opposition as constituting a failure to offer

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a basis for a finding of substantial justification and, thus, a failure to carry its burden of

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proof.” Gwaduri v. INS, 362 F.3d 1144, 1146 (9th Cir. 2004). However, the Court should

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exercise discretion in awarding fees under EAJA and “has an independent obligation to

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ensure that the request is reasonable.” Keyser v. Astrue, No. 08-1268-CL,

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2012 WL 78461, at *3 (D. Or. Jan. 10, 2012); see also Webb v. Ada Cty.,

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195 F.3d 524, 527

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“considerable discretion” in determining the reasonableness of a fee award). Accordingly,

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the Court reviews the record for reasonableness of Plaintiff’s request.

(9th Cir. 1999)

(recognizing

that

a

district

court

possesses

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A.

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The Court agrees with both Plaintiff and Defendant that the government’s position

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was not substantially justified. First, the Court held that the ALJ erred with her decision

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to discredit claimant’s testimony, as three of six of findings used to reach that decision

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were not supported by the record. (Doc. 25 at 3–5). An error is harmless if there is

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substantial evidence supporting the ALJ’s decision and the “error does not negate the

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validity of the ALJ’s ultimate conclusion.” Molina v. Astrue, 674 F.3d 1104, 1115

Substantial Justification

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(9th Cir. 2012). As the Court “cannot determine whether the ALJ’s ultimate conclusion

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would be changed by more accurate consideration of the evidence,” the error committed

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by the ALJ was not harmless.

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Second, the Court held that the ALJ gave potentially invalid reasons for

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discrediting the testimony of three out of four medical sources. (Doc. 25 at 9). This error

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also calls into question the ultimate conclusion of the disability determination, and

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therefore the Court finds that it is not harmless error. Based on these errors, the Court

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finds that the ALJ’s determination did not have a “reasonable basis both in law and fact,”

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and accordingly could not be substantially justified. Pierce, 487 U.S. at 565.

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Finally, the Court can identify no special circumstances that would make an award

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unjust. Based on these findings and Defendant’s non-objection to Plaintiff’s Motion, the

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Court finds that Plaintiff is entitled to attorneys’ fees under the EAJA.

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B.

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Plaintiff requests attorneys’ fees in the amount of $6,050.15, in addition to

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paralegal fees of $100, for a total of $6,150.15. (Doc. 27 at 1). This amount represents the

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31.4 hours Plaintiff’s counsel has expended on her case multiplied by the hourly rate of

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$190.28 1, in addition to two hours of paralegal time multiplied by the hourly rate of

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$50.00. (Id.). At 31.4 hours, the total amount of hours expended by Plaintiff is within the

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standard range awarded for Social Security cases. Costa v. Comm’r of Soc. Sec.,

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690 F.3d 1132, 1136 (9th Cir. 2012) (“Many district courts have noted that twenty to

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forty hours is the range most often requested and granted in social security cases.”

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(citations omitted)). Also, “a prevailing party that satisfies EAJA’s other requirements

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may recover its paralegal fees from the Government at prevailing market rates.”

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Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571 (2008). Therefore, the Court finds the

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amount of fees reasonable and awards them to Plaintiff in the requested amount.

Fee Amount

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The base hourly rate for EAJA cases is $125 per hour. The rate of $190.28 is
used in Plaintiff’s fee calculation after taking the Ninth Circuit Court of Appeals’s cost of
living adjustment into consideration. Statutory Maximum Rates Under the Equal Access
to Justice Act, http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last
visited July 12, 2017).
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IV.

Conclusion

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Based on the foregoing,

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

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the EAJA, (Doc. 27), is GRANTED in the amount of $6,150.15. This award shall be

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payable directly to Plaintiff and is subject to offset to satisfy any pre-existing debt that

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Plaintiff owes the United States pursuant to Astrue v. Ratliff, 560 U.S. 586, 594 (2010).

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Dated this 26th day of July, 2017.

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