Shreves v. Astrue

Filing 33

ORDER - IT IS ORDERED that Plaintiffs Motion for Award of Attorney's Fees under the Equal Access to Justice Act (Doc. 26 ) is GRANTED and that Plaintiff is awarded $8,189.31 in attorney's fees to be mailed (payable to Plaintiff) to Plaintiff's counsel, Mark Caldwell, Caldwell & Ober, PLLC, 1940 East Camelback Road, Suite 150, Phoenix, Arizona 85016. (See document for further details). Signed by Magistrate Judge Bridget S Bade on 8/6/13. (LAD)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rhonda Lynn Shreves, 10 11 12 No. CV-11-8076-PCT (BSB) Plaintiff, ORDER vs. Carolyn W. Colvin, Commissioner of Social Security, 13 Defendant. 14 15 Plaintiff Rhonda Lynn Shreves (Plaintiff) has filed a Motion for Award of 16 Attorney’s Fees Pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. 17 (Doc. 26.) Defendant, the Commissioner of the Social Security Administration (the 18 government), opposes this motion. (Doc. 31.) For the reasons set forth below, the Court 19 grants Plaintiff’s motion. 20 I. Procedural History 21 On November 22, 2006, Plaintiff applied for Disability Insurance Benefits under 22 Title II and Title XVI of the Social Security Act (the Act), 42 U.S.C. § 401-434, alleging 23 disability with an onset date of August 4, 2002. (Tr. 19.)1 Plaintiff’s application was 24 denied at the initial level of administrative review. After a hearing, on June 23, 2009, an 25 Administrative Law Judge (ALJ) denied Plaintiff’s application for benefits finding that 26 she was not disabled within the meaning of the Social Security Act. (Tr. 19-33.) The 27 ALJ’s decision became the final decision of the Commissioner of Social Security when 28 1 Citations to “Tr.” are to the administrative record located at docket 12. 1 1 the Social Security Appeals Council denied Plaintiff’s request for review on March 16, 2 2011. (Id. at 1-5.) 3 Plaintiff then brought this action pursuant to 42 U.S.C. § 405(g) for judicial review 4 of the Commissioner’s final decision. (Doc. 1.) This Court reversed the decision and 5 remanded the case for further consideration. (Doc. 24.) Thereafter, Plaintiff filed the 6 pending motion requesting an award of $7,728.51 in attorney’s fees under the EAJA. 7 (Doc. 27.) In the Reply in support of her motion, Plaintiff requests an additional $460.80 8 in attorney’s fees for time expended preparing her Reply. (Doc. 32.) 9 requests that any attorney’s fees awarded be paid by a check sent directly to her 10 attorney’s office. (Doc. 27.) The government argues that the motion should be denied 11 because it was substantially justified in defending this matter. The government also 12 argues, that unless Plaintiff agrees to waive the requirements of the Anti-Assignment Act, 13 and there is no debt owed by Plaintiff under the Treasury Offset Program, any award of 14 attorney’s fees should be paid directly to Plaintiff, not to her attorney. (Doc. 31.) 15 II. Plaintiff also Attorney’s Fees under the EAJA 16 In any action brought by or against the United States, the EAJA provides that “a 17 court shall award to a prevailing party other than the United States fees and other 18 expenses . . . unless the court finds that the position of the United States was substantially 19 justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A) 20 (emphasis added); see also Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1988) 21 (stating that the EAJA creates a presumption that fees will be awarded to the prevailing 22 party unless the government establishes that its position was “substantially justified”). 23 “Substantially justified means justified in substance or in the main — that is, 24 justified to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 25 U.S. 552, 565 (1988) (internal citations omitted). A substantially justified position must 26 have a reasonable basis both in law and fact. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 27 (9th Cir. 2001). The Ninth Circuit applies a reasonableness standard in determining 28 whether the government’s position was substantially justified for EAJA purposes. United -2- 1 States v. Rubin, 97 F.3d 373, 375 (9th Cir. 1996); Flores v. Shalala, 49 F.3d 562, 569 2 (9th Cir. 1995). The government bears the burden of establishing that its position was 3 substantially justified. Gutierrez, 274 F.3d at 1258. “The ‘position of the United States’ 4 includes both the government’s litigation position and the underlying agency action 5 giving rise to the civil action.” Meier v. Colvin, 2013 WL 3802382, at *1 (9th Cir. Jul. 6 23, 2013). The EAJA provides that, “‘[t]he position of the United States’ means, in 7 addition to the posture taken by the United States in the civil action, the action or failure 8 to act by the agency upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). 9 In the Social Security context, the Ninth Circuit treats the ALJ’s decision as the 10 “action or failure to act by the agency upon which the civil action is based.” Meier, 2013 11 WL 3802382, at *2. Thus, when applying the substantial justification test, the court 12 determines “(1) whether the [ALJ] was substantially justified in taking [the] original 13 action, and (2) whether the government was substantially justified in defending the 14 validity of the action in court.” Gutierrez, 274 F.3d at 1258; see also Meier, 2013 WL 15 3802382, at *3 (“Applying the substantial justification test [in the Social Security 16 context, the court] first consider[s] the underlying agency action, which . . . is the 17 decision of the ALJ. [The court] then considers the government’s litigation position.”). 18 III. Analysis 19 A. Prevailing Party 20 The Court must first determine whether Plaintiff qualifies as a prevailing party 21 under the EAJA. A plaintiff is a prevailing party if he or she succeeds on “any significant 22 issue that achieves some of the benefit sought in bringing the suit.” Penrod v. Apfel, 54 23 F. Supp. 2d 961, 963 (D. Ariz. 1999) (citing Tex. State Teachers Ass’n. v. Garland Indep. 24 School Dist., 489 U.S. 782, 791-92 (1989)). A claimant who obtains a court order 25 remanding a Social Security case to the Commissioner either for further proceedings or 26 for an award of benefits is a prevailing party under the EAJA. Shalala v. Schaefer, 509 27 U.S. 292, 300-01 (1993). 28 party because the Court remanded this matter to the ALJ for further consideration. See Here, the parties do not dispute that Plaintiff is a prevailing -3- 1 Gutierrez, 274 F.3d at 1257 (“An applicant for disability benefits becomes a prevailing 2 party for purposes of the EAJA if the denial of benefits is reversed and remanded 3 regardless of whether disability benefits are ultimately awarded.). 4 B. Underlying Agency Conduct 5 The parties disagree as to whether the ALJ’s decision in this case was substantially 6 justified. The Order remanding this case for further proceedings was based on the 7 Court’s conclusion that the ALJ erred at steps four and five of the sequential evaluation 8 process. (Doc. 24 at 20-23.) Specifically, the Court found that the ALJ’s determination 9 that Plaintiff retained the mental residual functional capacity to perform “unskilled work” 10 was not a substitute for the ALJ’s obligation to assess Plaintiff’s degree of functional 11 limitation resulting from her impairment and rendered the ALJ’s decision susceptible to 12 “‘overlooking limitations or restrictions that would narrow the ranges and types of work 13 an individual may be able to do.’” (Doc. 24 at 20 (citing Social Security Ruling 96-8p, 14 1996 WL 374184, at *4 (Jul. 2, 1996).) 15 The Court further found that the ALJ erred by applying the Medical-Vocational 16 Guidelines (the grids) without sufficiently explaining their applicability despite record 17 evidence suggesting that the grids may not encompass Plaintiff’s nonexertional 18 limitations. 19 regarding Plaintiff’s residual functional capacity and her ability to perform other work 20 existing in significant numbers in the national economy, the matter must be remanded to 21 the Commissioner for further administrative proceedings. (Id. at 24.) (Doc. 24 at 23.) The Court concluded that because issues remained 22 The government argues that implicit in the ALJ’s mental residual functional 23 capacity finding was a finding that Plaintiff could perform all of the mental demands of 24 unskilled work. (Doc. 31.) The government relies on Bayliss v. Barnhart, 427 F.3d 1211 25 (9th Cir. 2005), among other cases, to argue that as long as the ALJ took into account 26 Plaintiff’s limitations and discussed how evidence supported the residual function 27 capacity assessment, the ALJ was not required to engage in a function-by-function 28 analysis. As Plaintiff notes, the government essentially reiterates its arguments asserted -4- 1 in its Opposition to Plaintiff’s Opening Brief (Doc. 21), but does not explain why the 2 ALJ’s position was substantially justified. 3 government’s argument that “function-by-function assessments are not always necessary 4 because findings about specific limitations can be implicit” (Doc. 24 at 20-21), because 5 “Social Security Ruling 96-8p requires more than implicit findings” and “mere citation to 6 the regulations does not fulfill the function-by-function and narrative requirements under 7 SSR 96-8p.” (Id. at 21 (internal citations omitted).) The ALJ found that Plaintiff’s 8 mental impairments would “cause mild limitations in her daily living activities, mild 9 restrictions in social functions, and moderate restrictions in her concentration, (Tr. 31.) The Court has already rejected the 10 persistence, or pace.” The ALJ, however, did not consider how those 11 restrictions would limit specific work-related functions. Thus, the ALJ did not satisfy his 12 obligations under SSR 96-8p and the government has not met its burden of showing that 13 ALJ’s assessment of Plaintiff’s mental residual functional capacity was substantially 14 justified. 15 The government agrees that the ALJ’s finding that Plaintiff was not disabled was 16 based on the grids. (Doc. 31 at 6.) The government also acknowledges that the grids do 17 not direct a finding of “disabled” or “not disabled” when a claimant suffers from 18 nonexterional limitations that have a material effect on his work abilities. (Id. at 7.) 19 Then, the government argues that Plaintiff’s nonexertional impairments did not rise to 20 that level. The Court has already found that “[t]he ALJ erred by applying the grids 21 without providing sufficient explanation of their applicability despite record evidence 22 suggesting that the grids may not encompass Plaintiff’s nonexertional limitations . . . .” 23 (Doc. 24 at 23.) Again, the government does not explain why the ALJ’s step-five 24 determination was substantially justified. Therefore, the Court finds that the 25 government’s underlying action was not substantially justified in this case. 26 C. Litigation Position 27 Because the government’s underlying position was not substantially justified, the 28 Court need not address whether the government’s litigation position was justified. Meier, -5- 1 2013 WL 3802382, at *4 (citing Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) 2 (“The government’s position must be substantially justified at each stage of the 3 proceedings.”)). Moreover, even if the Court considered the government’s position in 4 this litigation, the Court would find that it was not substantially justified. See Sampson v. 5 Chater, 103 F.3d 918, 922 (9th Cir. 1996) (stating that “[i]t is difficult to imagine any 6 circumstance in which the government’s decision to defend its actions in court would be 7 substantially justified, but the underlying administrative decision would not.”). 8 Plaintiff points out, the government’s defense of the ALJ’s decision mainly restates its 9 arguments that the Court previously rejected in its order remanding this matter for further 10 proceedings. (Doc. 24.) In view of the errors in the ALJ’s analysis, the Court cannot 11 find that the government was substantially justified in defending the ALJ’s decision in 12 this case. Accordingly, the Court will award Plaintiff attorney’s fees under the EAJA. 13 IV. As Award of Attorney’s Fees 14 Plaintiff requests attorney’s fees in the amount of $8,189.31. This amount is based 15 on the following hourly rates and hours worked: (1) 2011, hourly rate $180.59 and 37.2 16 hours; and (2) 2012, hourly rate $183.73 and 5.5 hours. (Doc. 28. Ex. 1.) The fee request 17 also includes 2.5 hours at an hourly rate of $184.32 for time spent preparing Plaintiff’s 18 reply in 2013. 19 requested. (Doc. 32.) The government does not oppose the amount of fees 20 Attorney’s fees and expenses under the EAJA must be reasonable. See 28 U.S.C. 21 §§ 2412(d)(2)(A). Counsel for the prevailing party has an ethical duty to make a good 22 faith effort to exclude “excessive, redundant, or otherwise unnecessary” hours from 23 counsel’s fee petition. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The district court 24 has discretion to determine a reasonable fee award. See 28 U.S.C. § 2412(b); Pierce v. 25 Underwood, 487 U.S. 552, 571 (1988). 26 The EAJA limits attorney’s fees to $125.00 per hour “unless the court determines 27 that an increase in the cost of living or a special factor, such as the limited availability of 28 qualified attorneys for the proceeding involved, justifies a higher fee.” -6- 28 U.S.C. 1 § 2412(2)(d)(A). The Supreme Court has suggested that an increase based on the cost of 2 living is “next to automatic.” Meyer v. Sullivan, 958 F.2d 1029, 1035 n.9 (11th Cir. 3 1992) (quoting Pierce, 487 U.S. at 571 (1988)). 4 determined by multiplying the base EAJA rate ($125.00) by the current Consumer Price 5 Index for all Urban Consumers (CPI-U) and then dividing the product by the CPI-U in 6 the month that the cap was imposed ($155.70). See Sorenson v. Mink, 239 F.3d 1140, 7 1148 (9th Cir. 2001) (citing Ramon-Sepulveda v. INS, 863 F.2d 1458, 1463) (9th Cir. 8 1988)). Plaintiff has calculated the attorney’s fees award based on hourly rates that are 9 slightly less than or equal to the statutory maximum hourly rate under the EAJA. See 10 ‘Statutory Maximum Rates Under the Equal Access to Justice Act,” available at 11 (last visited Aug. 6, 12 2013).2 Additionally, the Court finds that counsel expended a reasonable number of 13 hours on this matter. Accordingly, the Court awards Plaintiff the requested amount of 14 attorney’s fees, $8,189.31. 15 The cost of living adjustment is Plaintiff requests that the Court order that “any check be sent to Plaintiff’s 16 counsel’s office.” (Doc. 27.) The government argues that any award of attorney’s fees 17 should be made payable to Plaintiff, not her attorney. (Doc. 31.) In Astrue v. Ratliff, 560 18 U.S. ___, 130 S. Ct. 2521 (2010), the Supreme Court held that EAJA fees are payable to 19 the prevailing party, not his attorney. Although Plaintiff recognizes Ratliff’s holding, she 20 states that the fee agreement with counsel provides that any EAJA fees are assigned to 21 Plaintiff’s counsel. Plaintiff states that, “while any EAJA fees are payable to Plaintiff, it 22 is respectfully submitted this Court should order any check sent to Plaintiff’s counsel’s 23 office.” (Doc. 27.) Plaintiff does not request that the check be made payable to her 24 attorney. 25 As previously stated, the Court in Ratliff held that EAJA fees are payable the 26 prevailing party, not his attorney. 130 S. Ct. at 2525. In so holding, the Court noted the 27 2 28 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. -7- 1 “practical reality that attorneys are the beneficiaries and, almost always, the ultimate 2 recipients of the fees that the statute awards to the ‘prevailing part[ies]’” because of 3 “nonstatutory (contractual and other assignment-based) rights that typically confer upon 4 the attorney the entitlement to payment of the fees award the statute confers on the 5 prevailing litigant.” Id. at 2529 (quoting Venegas v. Mitchell, 495 U.S. 82, 86 (1990)). 6 The Court further noted that such “arrangements would be unnecessary if . . . statutory 7 fees language like that in . . . EAJA provide[d] attorneys with a statutory right to direct 8 payment of awards.” Id. Thus, although Ratliff clarifies that EAJA awards of attorney’s 9 fees are payable directly to the prevailing party, it does not preclude the contractual 10 assignment of the fee award to Plaintiff’s attorney.3 In view of Ratliff, the Court declines 11 to order direct payment to Plaintiff’s attorney. 12 government to mail the attorney’s fee award, made payable to Plaintiff, to the office of 13 Plaintiff’s attorney. 14 Accordingly, 15 IT IS ORDERED that Plaintiff’s Motion for Award of Attorney’s Fees under the 16 Equal Access to Justice Act (Doc. 26) is GRANTED and that Plaintiff is awarded 17 $8,189.31 in attorney’s fees to be mailed (payable to Plaintiff) to Plaintiff’s counsel, 18 Mark Caldwell, Caldwell & Ober, PLLC, 1940 East Camelback Road, Suite 150, 19 Phoenix, Arizona 85016. However, the Court will direct the Dated this 6th day of August, 2013. 20 21 22 23 24 25 26 27 28 3 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.”). -8-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?