Register v. Colvin

Filing 37

ORDER granting in part 34 Motion for Attorney Fees. Plaintiff is awarded $4,834.67 pursuant to the Equal Access to Justice Act to be paid as set forth in Order. See PDF for details. Signed by Magistrate Judge Michelle H Burns on 1/30/17.(DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner of the )
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Social Security Administration,
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Defendant.
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David Eugene Register,

CIV 15-8067-PCT-MHB
ORDER

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Pending before the Court is Plaintiff David Eugene Register’s Motion for Award of

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Attorney’s Fees Pursuant to the Equal Access to Justice Act (“EAJA”) (Doc. 34). After

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reviewing the administrative record and the arguments of the parties, the Court now issues

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the following ruling.

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BACKGROUND

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Plaintiff filed applications for disability insurance benefits and supplemental security

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income pursuant to Titles II and XVI of the Social Security Act in July 2011, alleging

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disability beginning August 7, 2009. These claims were denied initially and upon

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reconsideration. After a subsequent hearing, an ALJ issued a decision denying Plaintiff’s

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claims. The Appeals Council denied Plaintiff’s request for review, thereby making the ALJ’s

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decision the final decision of the Commissioner. Plaintiff sought judicial review of the ALJ’s

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decision pursuant to 42 U.S.C. § 405(g).

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In his opening Brief, Plaintiff argued that the ALJ erred by: (1) failing to adequately

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consider the opinion of examining psychologist, Minette Doss, Ed.D.; (2) failing to account

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for limitations in concentration, persistence, and pace in the RFC; and (3) failing to provide

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legally sufficient reasons to discount his credibility. Plaintiff requested that the Court vacate

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the decision of the ALJ and remand for a determination of benefits.

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In response to Plaintiff’s Brief, the Commissioner filed a Brief Requesting Remand

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conceding that the ALJ’s decision contained errors, and stating that outstanding issues must

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be addressed before it can be determined whether Plaintiff is disabled. Specifically, the

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Commissioner stated that prior to reaching any conclusions about whether Plaintiff is

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disabled within the meaning of the Social Security Act, it is essential that the fact-finder

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derive an RFC after considering and weighing all the evidence in the record, and present that

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RFC to a vocational expert for an evaluation of Plaintiff’s ability to perform work. On

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remand, the Commissioner argued that the ALJ should (1) update the record; (2) hold a de

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novo hearing; (3) reevaluate the credibility of Plaintiff’s subjective complaints; (4) reevaluate

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the medical evidence, including the opinion of Dr. Doss; (5) re-assess Plaintiff’s RFC; and

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(6) continue the sequential evaluation process as appropriate.

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Therefore, the only issue before the Court was whether this matter should be reversed

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and remanded for further proceedings or for an award of benefits. After reviewing the

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administrative record and the arguments of the parties, the Court remanded the matter to the

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Commissioner for further proceedings. Specifically, the Court stated:

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Here, the parties agree that the ALJ erred in assessing Plaintiff’s RFC by
failing to properly consider Dr. Doss’ opinion and failing to properly account
for limitations in concentration, persistence, and pace. Further, it appears that
the ALJ relied upon an erroneous evaluation of the objective medical evidence,
in part, to discount Plaintiff’s credibility.
The Court finds ... that there are identifiable issues to be resolved on remand,
notably whether Plaintiff is disabled. Although the parties concede, and the
record reflects that the ALJ erred in failing to provide adequate reasons for his
findings and conclusion, the ALJ did identify some conflicting evidence in the
record that would seem to support a finding of non-disability. (Tr. at 18-21.)
Thus, because there are outstanding issues to be resolved, the Court will
remand for further administrative proceedings. Specifically, remand is
appropriate for a renewed residual functional capacity assessment, which
explicitly considers and reevaluates the opinion of Dr. Doss in conjunction
with all other objective medical evidence, as well as, Plaintiff’s subjective
complaints.

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DISCUSSION
The Ninth Circuit has succinctly stated the legal standard for an award of attorneys’
fees under the EAJA as follows:

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EAJA provides that a court shall award to a prevailing party other than the
United States fees and other expenses incurred by that party in any civil action
unless the court finds that the position of the United States was substantially
justified or that special circumstances make an award unjust. It is the
government’s burden to show that its position was substantially justified.
Substantial justification means justified in substance or in the main – that is,
justified to a degree that could satisfy a reasonable person. Put differently, the
government’s position must have a reasonable basis both in law and fact. The
position of the United States includes both the government’s litigation position
and the underlying agency action giving rise to the civil action. Thus, if the
government’s underlying position was not substantially justified, we must
award fees and need not address whether the government’s litigation position
was justified.

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Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (citations, quotation marks, and

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alterations omitted).

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When awarding attorneys’ fees under the EAJA, the Court should reimburse the

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prevailing party only for those fees which are reasonably expended by that party’s counsel.

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See 28 U.S.C. § 2412(d)(2)(A). The prevailing party bears the burden of proving the

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reasonableness of his request through sufficiently detailed accounts of hours expended on

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particular tasks so that the Court can evaluate his application. See Hensley v. Eckerhart, 461

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U.S. 424, 437 (1983); Neil v. Comm’r of Soc. Sec., 495 Fed.Appx. 845, 846 (9th Cir. 2012)

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(“A fee applicant should maintain billing records in a manner that enables a reviewing court

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to easily identify the hours reasonably expended.” (quotation omitted)). Generally, if the

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Court reduces a fee application it must provide a reason, however, “a district court can

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impose a reduction of up to 10 percent – a ‘haircut’ – based purely on the exercise of its

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discretion and without more specific explanation.” Costa v. Comm’r of Soc. Sec., 690 F.3d

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1132, 1135 (9th Cir. 2012) (citing Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th

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Cir. 2008)).

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In his request for fees pursuant to the EAJA, Plaintiff contends that he is the

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prevailing party, the position of the Commissioner was not substantially justified, and his

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application for attorney fees for 34.8 hours of service totaling $6,642.33 is reasonable.
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Plaintiff argues, in pertinent part, that on remand, he obtained better results than proposed

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in the Commissioner’s request. He states that the Commissioner requested further

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proceedings only to re-evaluate the opinion from the agency’s consultative examiner, Dr.

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Doss, but the final remand included a specific statement that favorably addressed Plaintiff’s

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argument that the ALJ provided an erroneous evaluation of his credibility.

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In response, the Commissioner does not contest that Plaintiff is entitled to EAJA fees.

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The Commissioner, however, objects to the reasonableness of the requested amount, in light

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of Plaintiff’s refusal to accept the Commissioner’s settlement offer and his unsuccessful

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attempt to litigate for greater relief than was offered by the Commissioner. The

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Commissioner asks this Court to find the time Plaintiff spent opposing the Commissioner’s

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Brief Requesting Remand after the Commissioner conceded error – the Reply brief – not

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reasonable and, therefore, should not be compensated. According to the response, the

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Commissioner states that this reduction would result in an EAJA award of $4,834.67 – rather

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than Plaintiff’s requested award of $6,642.33.

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As the record states, Plaintiff requested a remand for computation of benefits. The

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Commissioner conceded error and agreed to accept a remand for further administrative

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proceedings. Plaintiff filed a reply brief requesting payment of benefits. The Court,

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ultimately, remanded the case for further proceedings finding identifiable issues to be

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resolved on remand.

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Although Plaintiff contends that the Court ordered relief beyond the Commissioner’s

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remand request, in the Commissioner’s Brief Requesting Remand, the Commissioner

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specifically requested that the Court order the ALJ to:

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- Update the record;
- Hold a de novo hearing;
- Reevaluate the credibility of Plaintiff’s subjective complaints;
- Reevaluate the medical evidence, including the opinion of Minette Doss, Ed.D.;
- Re-assess Plaintiff’s RFC; and
- Continue the sequential evaluation process as appropriate

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Thus, the Commissioner did, in fact, request on remand that the ALJ “Reevaluate the
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credibility of Plaintiff’s subjective complaints.” Since Plaintiff’s Reply brief did not advance
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his position, the Court agrees with the Commissioner that the time spend drafting the Reply

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should not be compensated under the EAJA.

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According to the pleadings, counsel spent 9.5 hours on the Reply brief, resulting in
a request for an additional $1,807.66 (at the rate of $190.28 per hour):
4/18/16 Began review of opening brief, reply brief, review of paper copies of
Administrative Law Judge decision and DOSS CE report, in preparation for
draft of reply brief. 3.0
4/19/16 Review of parties’ briefs, portions of administrative transcript, legal
research, draft of entire reply brief, edited x 2, emailed to office. 6.5

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Total: 9.5
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Therefore, having reviewed the affidavits and the statement of fees, and having
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considered the relevant fee award factors, see Hensley, 461 U.S. at 429-30 & n.3, the Court
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will grant Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to the Equal Access to
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Justice Act in part, and award Plaintiff a reasonably attorney fee under the EAJA in the
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amount of $4,834.67.
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Accordingly,
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IT IS ORDERED that Plaintiff’s Motion for Award of Attorney’s Fees Pursuant to
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the Equal Access to Justice Act (Doc. 34) is GRANTED in part;
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IT IS FURTHER ORDERED that Plaintiff is awarded $4,834.67 pursuant to the
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Equal Access to Justice Act;
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IT IS FURTHER ORDERED that, pursuant to the assignment of fees in Plaintiff’s
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fee agreement, the government shall pay the fee award, minus any offset as explained below,
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payable to Plaintiff, care of counsel’s office: Mark Caldwell, Law Office of Mark Caldwell,
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P.C., 9920 S. Rural Road, No. 108-167, Tempe, Arizona 85284-4100;
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IT IS FURTHER ORDERED that, although fees under the EAJA are awarded to the
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prevailing party, not to the party’s attorney, the Commissioner shall determine whether
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Plaintiff owes a debt to the government and, if the Acting Commissioner of Social Security
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(1) determines upon effectuation of the Court’s Equal Access to Justice Act fee order that
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Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program, and
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(2) agrees to waive the requirements of the Anti-Assignment Act, the fees will be made

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payable to Plaintiff’s attorney;

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IT IS FURTHER ORDERED that Plaintiff’s counsel shall refund to Plaintiff the

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lesser of fees awarded under the Equal Access to Justice Act and any fees awarded from

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past-due benefits under 42 U.S.C. § 406(b).

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DATED this 30th day of January, 2017.

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