Fultz v. Commissioner of Social Security Administration

Filing 25

ORDER denying 24 Motion for Reconsideration. Signed by Senior Judge David G Campbell on 1/30/2019.(DGC, nvo)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Denise F.,

No. CV17-03122-PHX-DGC
Plaintiff,

10
11

v.

12

ORDER

Nancy A. Berryhill, Acting Commissioner
of the Social Security Administration,

13
14

Defendant.

15
16
17

Before the Court is Plaintiff’s motion for reconsideration of the Court’s award of
attorneys’ fees under the Equal Access to Justice Act (“EAJA”). Docs. 24, 23.

18

Following remand of Plaintiff’s social security appeal, Plaintiff’s attorney requested

19

$10,192.84 in attorneys’ fees. Doc. 22 at 10. The Court awarded fees but reduced the

20

amount to $7,644.63, finding Plaintiff succeeded on only one of her arguments and the

21

Court limited Plaintiff’s remand to reweighing the opinions of an improperly discredited

22

physician. Doc. 23 at 4. Plaintiff argues that this decision was erroneous because her

23

remand is not limited and will instead allow her to present the unsuccessful arguments, as

24

well as new testimony and medical evidence, in a new hearing. Doc. 24 at 3.

25

Plaintiff cites the Hearings, Appeals and Litigation Law Manual for the Social

26

Security Administration, which states: “If the Appeals Council [] remands a case to the

27

hearing level after a court remand, it generally vacates the entire administrative law judge

28

(ALJ) decision, and the ALJ must consider all pertinent issues de novo.” See HALLEX I-

1

2-8-18 (S.S.A.) 1993 WL 643058. But this provision does not support Plaintiff’s broad

2

assertion that every federal court remand leads to a de novo review by an ALJ. Indeed,

3

social security regulations indicate that remand procedures vary depending on the post-

4

remand acts and instructions of the Appeals Council. See 20 C.F.R. § 416.1483 (on remand

5

from a federal court, the Appeals Council may either make a decision or remand the case

6

to an ALJ with further instruction); Id. § 416.1477 (An ALJ must “take any action ordered

7

by the Appeals Council and may take any additional action that is not inconsistent with the

8

Appeals Council’s remand order.”).

9

Further, Plaintiff’s reading of the remand procedure would mean that it is never

10

proper for a district court to discount fees for unsuccessful arguments. Because every case

11

would be subject to a de novo hearing, every case would require a full award of fees, even

12

if the claimant prevailed only on one of many arguments made in the district court. This

13

is clearly inconsistent with the Court’s EAJA analysis.

14

Plaintiff also argues that her remand can be distinguished from the limited remand

15

in Blair. In Blair v. Colvin, 619 F. App’x 583 (9th Cir. 2015), the Ninth Circuit upheld a

16

reduction in attorneys’ fees, finding a plaintiff was only partially successful when she

17

received a federal court remand that was limited to “reassessing several consultants’

18

positions regarding [the plaintiff’s] ability to persist and handle workplace stress.” Id.

19

at 585. Plaintiff argues that her remand is not limited to reconsideration of the treating

20

physician’s opinions but was remanded for further proceedings on “these issues.” Doc. 24

21

at 3.

22

The Court’s remand stated:

23

Applying step two of the Ninth Circuit’s test, the Court concludes that
outstanding issues must be resolved before a disability determination can be
made. The ALJ properly discredited Plaintiff’s testimony regarding her own
limitations, and Plaintiff has not provided a basis for finding error in the
ALJ’s reliance on the opinions of non-examining physicians. But the ALJ
did err in discrediting [the treating physician’s] opinions, which creates an
unresolved outstanding issue: how should that opinion be weighed against
the lack of credibility in Plaintiff’s disability testimony and the opinions of

24
25
26
27
28

-2-

1
2

the other physicians? The Court concludes that further proceedings on these
issues would be useful[] and will remand for such proceedings.

3

Doc. 17 at 13. The Court clearly instructed the ALJ to reweigh the improperly credited

4

treating physician’s opinions against the properly credited evidence. The Court’s order

5

does not suggest de novo review or a new hearing and review of the unsuccessful

6

arguments.

7

Plaintiff argues that no cases citing Blair have reduced EAJA fees based on limited

8

success. Doc. 24 at 4. The Court has reviewed Plaintiff’s citations but finds none

9

instructive. Measuring the degree of relief obtained by a Plaintiff is a case-specific

10

determination to be made at the discretion of the district court. See Thomas v. City of

11

Tacoma, 410 F.3d 644, 649-50 (9th Cir. 2005). It must factor in the relationship between

12

the amount of the fee award and the results obtained. Hensely v. Eckerhart, 461 U.S. 424,

13

437 (1983). Here the Court considered all the relevant factors and determined that the fee

14

award should be reduced. This was not error.

15

IT IS ORDERED that Plaintiff’s motion for reconsideration is denied.

16

Dated this 30th day of January, 2019.

17
18
19
20
21
22
23
24
25
26
27
28

-3-