Caves v. Astrue

Filing 26

ORDER that Plaintiff's Motion for Attorney Fees Pursuant to the Equal Access to Justice Act (Doc. 23 ), in the amount of $5,966.10 is GRANTED. Payment will be made payable to Plaintiff and delivered to Plaintiff's attorney at his office: J. Patrick Butler, Tretschok, McNamara & Miller, P.C., P.O. Box 42887, Tucson, AZ 85733-2887. See attached Order for complete details. Signed by Magistrate Judge Charles R Pyle on 6/18/2015.(MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Melissa E. Caves,

No. CV 12-513-TUC-CRP
Plaintiff,

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v.

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ORDER

Carolyn Colvin, Acting Commissioner of
Social Security Administration,

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Defendant.

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This action commenced when Plaintiff Melissa Caves sought judicial review of

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Defendant’s decision denying her applications for disability insurance benefits and

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supplemental security income. Upon consideration of the parties’ briefs on the issue, this

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Court entered an Order reversing the decision and remanding the matter for an immediate

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calculation and award of benefits. (Doc. 21). Plaintiff’s counsel, J. Patrick Butler, now

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seeks attorneys’ fees in the amount of $5,966.10 under the Equal Access to Justice Act

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(“EAJA”), 28 U.S.C. ' 2412(d) (Plaintiff’s Motion (Docs. 23 & 24)) for time he and

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attorney Eric Schnaufer spent working on Plaintiff’s case. Although Defendant does not

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contest the amount of fees requested, Defendant argues that fees are not warranted

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because the government’s action in this case was substantially justified (Defendant’s

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Opposition (Doc. 25)). For the following reasons, the Court grants Plaintiff’s request for

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attorneys’ fees.

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DISCUSSION

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The EAJA “authorizes federal courts to award attorneys’ fees, court costs, and

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other expenses when a party prevails against the United States, although fee-shifting is

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not mandatory.” Hardisty v. Astrue, 592 F.3d 1072, 1076 (9th Cir. 2010). Plaintiff is a

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prevailing party because the decision denying her benefits was reversed and remanded for

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an immediate award of benefits. See Akopyan v. Barnhart, 296 F.3d 852, 854-55 (9th Cir.

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2002); Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001).

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Under the EAJA, reasonable attorneys’ fees shall be awarded unless Defendant

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shows her position in this case was “substantially justified or that special circumstances

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make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gutierrez, 274 F.3d at 1258.

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“Substantially justified” means “‘justified in substance or in the main’—that is, justified

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to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552,

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565, (1988); see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2005). “Put

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differently, the government’s position must have a ‘reasonable basis both in law and

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fact.’” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (quoting Pierce, 487 U.S. at

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565). Further, the EAJA’s reference to the government’s position encompasses “both the

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government's litigation position and the underlying agency action giving rise to the civil

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action.” Meier, 727 F.3d at 870 (citations omitted). The government bears the burden of

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showing that its position was substantially justified. Gonzales v. Free Speech Coalition,

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408 F.3d 613, 618 (9th Cir. 2005).

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Defendant argues that an award of attorneys’ fees should be denied because her

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position was substantially justified. (Response (Doc. 25)). In the context of a Social

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Security disability determination, “district courts should focus on whether the

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government’s position on the particular issue on which the claimant earned remand was

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substantially justified, not on whether the government’s ultimate disability determination

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was substantially justified.” Hardisty, 592 F.3d at 1078 (citing Flores v. Shalala, 49 F.3d

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562, 569 (9th Cir. 1995)). A position can be substantially justified pursuant to the EAJA

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even when the position is ultimately incorrect. Pierce, 487 U.S. at 566 n.2. The test for

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determining whether a position was substantially justified, therefore, focuses on whether

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“a reasonable person could think it correct[.]” Id. If “there is a genuine dispute” between

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reasonable minds then the position is “substantially justified” pursuant to the EAJA. Id. at

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565. However, the government’s defense of “basic and fundamental errors” cannot be

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considered as substantially justified. Shafer v. Astrue, 518 F.3d 1067, 1071-72 (9th Cir.

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2008) (holding, inter alia, that it was legal error to discredit claimant’s testimony without

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giving clear and convincing reasons and to reject a treating physician’s opinion without

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providing adequate reasons for doing so, and that the Commissioner was not substantially

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justified in defending it).

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In this case, the Court found that Defendant’s final decision merited remand for

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immediate award of benefits because the ALJ erroneously rejected the opinion of

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Plaintiff’s treating psychiatrist Dr. Bupp in favor of examining psychologist Dr.

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Armstrong. (Doc. 21). The record supports the conclusion that Plaintiff suffered from

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long-standing mental health issues. The ALJ found that Plaintiff’s severe impairments

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included bipolar disorder, obsessive-compulsive disorder and anxiety disorder. The

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government contends that the underlying administrative decision and the decision to

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oppose Plaintiff’s request for judicial review was substantially justified because “a

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reasonable mind could believe that the ALJ’s articulation and treatment of [Dr.

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Bupp’s]…opinion was adequate.” (Doc. 25, p. 6) (citations omitted). Defendant stresses

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that Dr. Bupp’s treatment notes indicating Plaintiff was improved and “much more stable

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and healthy” on medication, supports the conclusion that reasonable minds could have

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agreed with the ALJ’s decision to reject Dr. Bupp’s opinion as inconsistent with his

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treatment notes and inconsistent with “Plaintiff’s statements regarding her abilities….”

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(Id. at pp. 5-6).

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However, when rejecting treating Dr. Bupp’s opinion that Plaintiff suffered from

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marked limitations in multiple areas, the ALJ failed to heed Ninth Circuit authority that

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when

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discussing mental health issues, it is error [for an ALJ] to reject a claimant's
testimony merely because symptoms wax and wane in the course of
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treatment. Cycles of improvement and debilitating symptoms are a common
occurrence, and in such circumstances it is error for an ALJ to pick out a
few isolated instances of improvement over a period of months or years and
to treat them as a basis for concluding a claimant is capable of working.
See, e.g., Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir.2001)
(“[The treating physician's] statements must be read in context of the
overall diagnostic picture he draws. That a person who suffers from severe
panic attacks, anxiety, and depression makes some improvement does not
mean that the person's impairments no longer seriously affect her ability to
function in a workplace.”).

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Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (footnote omitted). Instead,

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“[r]eports of ‘improvement’ in the context of mental health issues must be interpreted

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with an understanding of the patient's overall well-being and the nature of her symptoms.

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Id. (citing Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200-01 (9th Cir. 2008) (“Nor are

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the references in [a doctor's] notes that Ryan's anxiety and depression were ‘improving’

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sufficient to undermine the repeated diagnosis of those conditions, or [another doctor's]

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more detailed report.”)). Additionally, such reports of improvement “must also be

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interpreted with an awareness that improved functioning while being treated and while

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limiting environmental stressors does not always mean that a claimant can function

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effectively in a workplace.” Id. at 1017-18 (citing Hutsell v. Massanari,, 259 F.3d 707,

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712 (8th Cir. 2001); Scott v. Astrue, 647 F.3d 734, 739-40 (7th Cir. 2011)) (footnote

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omitted).

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As discussed in the Court’s Order (Doc. 21), any notation of improvement from

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time to time did not vitiate Dr. Bupp’s opinion. Further, while the ALJ also supported his

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finding that Plaintiff was not disabled by citing Plaintiff’s stated aspirations to work,

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pursue a master’s degree, or publish a book, he failed to take into account the evidence of

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record supporting the finding that Plaintiff was actually unable to maintain employment

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due to her mental limitations. As Plaintiff succinctly pointed out, “[s]uggestions by a

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person with bipolar disorder to engage in such activities are not even a scintilla of

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evidence for full-time work capacity.” (Order (Doc.21), p.13 (quoting Reply (Doc.19), p.

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7)). Finally, even though examining Dr. Armstrong, whose opinion the ALJ favored,

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indicated that Plaintiff’s sustained concentration and persistence, social interaction, and

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adaptation were within normal limits on the day of his examination but nonetheless were

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“subject to bipolar interference”, nothing in the record supported the conclusion that the

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limitations the ALJ assessed were consistent with functioning “subject to bipolar

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interference[.]”

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At bottom, the ALJ failed to set forth specific and legitimate reasons for rejecting

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treating Dr. Bupp’s opinion.

When a hypothetical question was posed to the VE

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incorporating the marked limitations found by Dr. Bupp, the VE testified that such

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limitations would preclude Plaintiff from working. The ALJ’s burden to state legally

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sufficient reasons to reject a treating doctor’s opinion or to discount credibility is clear

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under the law. See e.g. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (setting out

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ALJ’s burden to reject physician testimony); Robbins v. Social Sec. Admin, 466 F.3d 880,

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884 (9th Cir. 2006) (stating test for discounting a claimant’s credibility). Yet, the ALJ

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failed to satisfy his burden. The Ninth Circuit has found that the government was not

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substantially justified in defending, inter alia, the ALJ’s failure to meet his burden in

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rejecting a treating physician’s opinion in favor of a non-treating physician’s opinion.

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Shafer, 518 F.3d at 1071-72.

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Here, the ALJ’s decision was unsupported by substantial evidence and based on

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legal error given his failure to state legally sufficient reasons to support the decision to

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deny benefits. Defense of such a fundamental error lacks substantial justification on this

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record. Id. When the government's underlying position is not substantially justified, the

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Court need not address whether the government's litigation position was justified. Meier,

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727 F.3d at 872 (citing Shafer, 518 F.3d at 1071). Moreover, consideration of the

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government's position in this litigation would inevitably result in the conclusion that the

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government’s defense of the ALJ’s errors is not substantially justified. See e.g., Sampson

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v. Chater, 103 F.3d 918, 922 (9th Cir.1996) (stating that “[i]t is difficult to imagine any

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circumstance in which the government's decision to defend its actions in court would be

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substantially justified, but the underlying administrative decision would not.”); Meier,

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727 F.3d at 873 (same); Green v. Colvin, 2013 WL 1878924 at *2 (D. Ariz. May 3, 2013)

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(“While it may be possible that some decision will be unsupported by substantial

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evidence or based on legal error and yet still have a reasonable basis in law and fact, this

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is not that case.”). This is especially so given that Defendant’s attempt to establish

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substantial justification essentially restates her arguments that the Court previously

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rejected in its order remanding this matter for an immediate award of benefits. See Meier,

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727 F.3d at 873 (rejecting government’s attempt to establish substantial justification for

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its position by relying on arguments raised on previous unsuccessful appeal); Shreves v.

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Colvin, 2013 WL 4010993 at *3 (D. Ariz. Aug. 6, 2013) (rejecting government’s reliance

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on arguments made in opposing judicial review of the Commissioner’s decision to show

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substantial justification for its position). In light of the errors in the ALJ’s analysis, the

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Court cannot conclude that the government was substantially justified in defending the

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administrative decision in this case. Consequently, Plaintiff is entitled to attorneys’ fees

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under the EAJA.

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Defendant does not contest the amount of fees requested.

(See Doc. 25).

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However, Defendant points out that in light of Astrue v. Ratliff, 560 U.S. 586 (2010),

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EAJA fees awarded “belong to the Plaintiff and are subject to offset under the Treasury

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Offset Program (31 U.S.C. ' 3716(c)(3)(B)).” (Doc. 25, p. 7 n.1). “The parties agree that

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any EAJA fees should be awarded as payable to Plaintiff and not to Plaintiff’s attorney.”

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(Id. (citations omitted)).

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Attorneys’ fees and expenses under the EAJA must be reasonable. See 28 U.S.C.

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'2412(d)(2)(A). The district court has discretion to determine a reasonable fee award.

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See 28 U.S.C. '2412(b); Pierce, 487 U.S. at 571. The Court has reviewed the hours

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billed by Plaintiff’s counsel. (See Doc. 24, pp. 8-9 & Exhs. B, C). The Court finds

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reasonable the submission of 5.25 hours on behalf of Mr. Butler and 26.8 hours on behalf

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of Mr. Schnaufer billed at the cost-of-living adjusted rates. See Costa v. Comm’r. of

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Social Security, 690 F.3d 1132, 1136 (9th Cir. 2012) (in determining the reasonableness

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of fee requests, the court may consider the fact that “[m]any district courts have noted

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that twenty to forty hours is the range most often requested and granted in social security

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cases.”).

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CONCLUSION

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For the foregoing reasons, Plaintiff is to entitled attorneys’ fees in the uncontested
amount of $5,966.10. Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for Attorney Fees Pursuant to the Equal

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Access to Justice Act (Doc. 23), in the amount of $5,966.10 is GRANTED. Payment will

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be made payable to Plaintiff and delivered to Plaintiff’s attorney at his office: J. Patrick

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Butler, Tretschok, McNamara & Miller, P.C., P.O. Box 42887, Tucson, AZ 85733-2887.

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Dated this 18th day of June, 2015.

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