Hopkins v. Commissioner of Social Security Administration

Filing 39

AMENDED ORDER - IT IS ORDERED that Plaintiff's motion for attorneys' fees (Doc. 26 ) is granted and Plaintiff is awarded $12,693.49 pursuant to 28 U.S.C. § 2412. IT IS FURTHER ORDERED that if the Commissioner determines that Pla intiff does not owe a debt that is subject to offset under the Treasury Offset Program and agrees to waive the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727(b), the fees will be made payable to Plaintiff's counsel. However, i f there is a debt owed under the Treasury Offset Program, the remaining EAJA fees after offset will be paid by check made out to Plaintiff but delivered to Plaintiff's counsel. (See document for complete details). Signed by Senior Judge David G Campbell on 3/9/2023. (SLQ)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10

Audra E. Hopkins,
Plaintiff,

11
12
13

No. CV-18-08129-PCT-DGC
AMENDED ORDER

v.
Kilolo Kijakazi, Acting Commissioner of
the Social Security Administration,

14

Defendant.

15
16

Plaintiff Audra Hopkins has made an application to the Court for attorneys’ fees

17

under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 26. No party

18

requests oral argument, and the motion is fully briefed. Docs. 27, 30, 33. For reasons set

19

forth below, the Court will grant the motion.

20

I.

Background.

21

On March 15, 2017, an administrative law judge (“ALJ”) denied Plaintiff’s

22

application for social security benefits, finding that Plaintiff was not disabled within the

23

meaning of the Social Security Act. Doc. 18 at 1. That denial became the Commissioner’s

24

final decision when the Appeals Council denied Plaintiff’s request for review. Id. at 2.

25

Plaintiff brought an action for judicial review pursuant to 42 U.S.C. § 405(g).

26

Doc. 1. On November 5, 2018, Plaintiff filed her opening brief and requested remand for

27

an immediate award of benefits. Doc. 12. The Commissioner offered to remand for further

28

proceedings on December 28, 2018. See Docs. 14 at 2; 27-2 at 4; 30 at 4. Plaintiff rejected
1

1

that offer. Docs. 27-2 at 5; 30 at 4. The Commissioner filed her response brief, requesting

2

remand for further proceedings. Doc. 16. Plaintiff’s opposed the Commissioner’s position

3

in the reply brief, arguing that remand was unnecessary and instead seeking an immediate

4

award of benefits. Doc. 17. Because outstanding issues required resolution before a

5

determination of disability could be made, the Court remanded the case for further

6

proceedings. See Doc. 18 at 16. Plaintiff appealed (Doc. 20), and the Ninth Circuit

7

affirmed (Doc. 24).

8

Plaintiff’s attorney, Mark Caldwell, requests $12,693.49 in attorneys’ fees. See

9

Doc. 33 at 8. This includes $9,591.88 for time devoted to Plaintiff’s appeal of the

10

Commissioner’s decision (Doc. 27-2 at 1-5), $2,175.65 for Plaintiff’s opposition to the

11

Commissioner’s brief (Doc. 27-2 at 5), and $925.96 for the fee petition (Doc. 33 at 8).

12

II.

Legal Standard.

13

Under the EAJA, the Court must award attorneys’ fees to a prevailing party in

14

“proceedings for judicial review of agency action . . . unless the [C]ourt finds that the

15

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

16

an award unjust.” 28 U.S.C. § 2412(d)(1); Gutierrez v. Barnhart, 274 F.3d 1255, 1258

17

(9th Cir. 2001). Under this provision, courts routinely award attorneys’ fees to claimants

18

who successfully challenge the Social Security Administration’s denial of disability

19

benefits. See, e.g., Tobeler v. Colvin, 749 F.3d 830 (9th Cir. 2014).

20

III.

Reasonableness of Fees.

21

The Commissioner “waives the right to argue substantial justification and does not

22

contest that Plaintiff is entitled to reasonable EAJA fees.” Doc. 30 at 2. The Commissioner

23

instead argues that the Court should deduct 10.6 hours from Plaintiff’s fee request because

24

she rejected the Commissioner’s offer to voluntarily remand and did not obtain all of the

25

relief for which she argued. Doc. 30 at 2, 4-5. The Court does not agree.

26

First, a rejected offer to remand for further proceedings provides no reason to reduce

27

a fee award. See Gallagher v. Comm’r of Soc. Sec. Admin., No. CV-19-05766-PHX-MTL,

28

2021 WL 2895288, at *3 (D. Ariz. July 9, 2021) (“[T]he Court will not reduce the award
2

1

merely because the Commissioner offered to remand the case.”); Long v. Colvin, No. 13-

2

CV-05716-SI, 2015 WL 3902160, at *2 (N.D. Cal. June 24, 2015). A plaintiff is “not

3

obligated to stipulate to remand.” Wright v. Comm’r of Soc. Sec. Admin., No. CV-19-

4

04508-PHX-DLR, 2020 WL 6781308, at *1 (D. Ariz. Nov. 18, 2020) (citations omitted)

5

(collecting cases).

6

Second, Plaintiff’s opening brief requested remand without further administrative

7

proceedings and, in the alternative, remand for further administrative proceedings.

8

Doc. 12 at 22. Plaintiff argued that the ALJ erroneously rejected the opinion of Plaintiff’s

9

treating physician, Dr. Janikowski, and disregarded Plaintiff’s symptom testimony. Id.

10

In response, the Commissioner asked the Court to remand the case for further

11

proceedings. Doc. 16. Essentially, “[t]he Commissioner’s [brief] was merely a concession

12

that Plaintiff was entitled to a remand for further administrative proceedings, combined

13

with an opposition to a remand for benefits.” McCormick v. Comm’r of Soc. Sec. Admin.,

14

No. CV-20-01780-PHX-DWL, 2022 WL 3139936, at *3 (D. Ariz. Aug. 4, 2022).

15

Plaintiff’s reply urged the Court to remand for an immediate award of benefits and applied

16

the credit-as-true standard to the facts. Doc. 17 at 6, 8.

17

The Court ultimately remanded for further proceedings with instructions to the ALJ

18

to reevaluate Dr. Janikowski’s medical opinion and Plaintiff’s symptom testimony.

19

Doc. 16. The Court’s decision reflected a partial victory for Plaintiff. McCormick, 2022

20

WL 3139936, at *3 (rejecting, under similar circumstances, “[t]he Commissioner[’s]

21

attempts to recast the Court’s order remanding for further proceedings as a win for the

22

Commissioner” and noting “the victory [was] Plaintiff’s, even though she didn’t get

23

everything she requested”). Moreover, courts in this circuit have acknowledged that “[i]f

24

counsel has a reasonable chance of obtaining benefits from the court, without another round

25

of administrative proceedings (and the attendant delay), he or she should be encouraged to

26

pursue that remedy.” Rogers v. Astrue, No. 1:09-CV-02158-JLT, 2010 WL 4569058, at

27

*3 (E.D. Cal. Nov. 3, 2010) (citations omitted); see, e.g., McCormick, 2022 WL 3139936,

28

at *3-4 (D. Ariz. Aug. 4, 2022); Penrod v. Apfel, 54 F. Supp. 2d 961, 963 (D. Ariz. 1999)
3

1

(“It is of little, if any consequence that Plaintiff preferred summary judgment over remand.

2

Material errors were made during administrative proceedings . . . . Plaintiff’s reasons for

3

seeking summary judgment and opposing remand were legally sound and not at all

4

frivolous.”).

5

The Court’s decision not to award all of the relief Plaintiff requested does not change

6

the fact that her appeal reversed an unfavorable outcome and produced new proceedings.

7

“[A] plaintiff who has won substantial relief should not have her attorney’s fees reduced

8

simply because the district court did not adopt each contention raised.” Schwarz v. Sec’y

9

of Health & Hum. Servs., 73 F.3d 895, 901 (9th Cir. 1995);

see also Alvey v. Comm’r of

10

Soc. Sec. Admin., No. CV-20-08105-PHX-SPL, 2022 WL 375848, at *6 (D. Ariz. Feb. 8,

11

2022) (“[J]ust because the Court rejects an argument does not mean the argument was

12

unreasonable and that fees should be reduced.”). The Court therefore will not reduce the

13

fees requested by Plaintiff.1

14
15

IT IS ORDERED that Plaintiff’s motion for attorneys’ fees (Doc. 26) is granted
and Plaintiff is awarded $12,693.49 pursuant to 28 U.S.C. § 2412.

16

IT IS FURTHER ORDERED that if the Commissioner determines that Plaintiff

17

does not owe a debt that is subject to offset under the Treasury Offset Program and agrees

18

to waive the requirements of the Anti-Assignment Act, 31 U.S.C. § 3727(b), the fees will

19

be made payable to Plaintiff’s counsel. However, if there is a debt owed under the Treasury

20

Offset Program, the remaining EAJA fees after offset will be paid by check made out to

21

Plaintiff but delivered to Plaintiff’s counsel.

22

Dated this 9th day of March, 2023.

23
24
25
26
27
28

The Commissioner also requests that the Court find the time that Plaintiff’s counsel
spent “drafting a reply to [her] EAJA opposition” to be “unreasonable and noncompensable.” Doc. 30 at 5. But “having prevailed entirely in the fees motion, Plaintiff
is also entitled to the fees incurred in litigating it.” Latahotchee v. Comm’r of Soc. Sec.
Admin., No. CV-19-05668-PHX-DWL, 2021 WL 3089117, at *4 (D. Ariz. July 22, 2021)
(citations omitted).
1

4