Wayne E. Ramirez v. Carolyn W. Colvin

Filing 24

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFFS MOTION FOR EAJA FEES AND COSTS by Magistrate Judge Sheri Pym: granting 22 Motion for Attorney Fees. Fees awarded in favor of Wayne E Ramirez against Carolyn W Colvin in the amount of 3,772.05. (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WAYNE E. RAMIREZ,
Plaintiff,

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v.

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CAROLYN W. COLVIN,
Acting Commissioner of Social
Security Administration,

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Defendant.

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Case No. ED CV 13-960-SP
MEMORANDUM OPINION AND
ORDER GRANTING PLAINTIFF’S
MOTION FOR EAJA FEES AND
COSTS

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I.

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INTRODUCTION

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On May 31, 2013, plaintiff Wayne E. Ramirez filed a complaint in this

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court against defendant the Commission of the Social Security Administration

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(“Commissioner”), seeking a review of a denial of a period of disability,

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disability insurance benefits (“DIB”), and supplemental security income

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(“SSI”). Plaintiff presented one issue, contending the Administrative Law

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Judge (“ALJ”) erred in rejecting plaintiff’s subjective symptom testimony when

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the ALJ assessed plaintiff’s residual functional capacity (“RFC”). This court

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entered Judgment in plaintiff’s favor on April 30, 2014, reversing the decision

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of the Commissioner denying plaintiff benefits, and remanding the matter for
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further administrative proceedings pursuant to sentence four of 42 U.S.C.

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§ 405(g). The court found the ALJ erred in that he failed to provide clear and

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convincing reasons supported by substantial evidence for discounting

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plaintiff’s credibility.
On July 28, 2014, plaintiff filed a Petition for Attorney Fees, Costs, and

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Expenses Under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

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§ 2412(d) (“Motion”). Plaintiff is seeking a fee award in the amount of

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$3,828.98 based on 18.1 hours of attorney time at rates of between $187.02 and

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$189.78 per hour, and 3.2 hours of paralegal time at a rate of $137.00 per hour.

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On August 6, 2014, defendant filed an Opposition to the Motion.

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Defendant contends that plaintiff is not entitled to recover any EAJA fees

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because the Commissioner was substantially justified in her position.

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Defendant further contends that, if the court determines EAJA fees are

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appropriate, the fees sought should be reduced because the hours claimed for

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the work done are excessive.

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The court finds that the Commissioner was not substantially justified in

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her position, and therefore EAJA fees are appropriate. The court further finds

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the fees sought by plaintiff are reasonable under the circumstances, with one

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slight modification. Hence, for the reasons discussed further below, the court

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awards EAJA fees of $3,772.05.

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II.

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DISCUSSION

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A.

Legal Standard
The EAJA provides in pertinent part:
Except as otherwise specifically provided by statute, a court

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shall award to a prevailing party other than the United States fees

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and other expenses . . . incurred by that party in any civil action

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(other than cases sounding in tort), including proceedings for
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judicial review of agency action, brought by or against the United

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States in any court having jurisdiction of that action, unless the

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court finds that the position of the United States was substantially

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justified or that special circumstances make an award unjust.

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28 U.S.C. § 2412(d)(1)(A). Thus, to award attorney’s fees under the EAJA, the

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court must determine that: (1) the claimant was the prevailing party; (2) the

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government has failed to show that its position was “substantially justified” or

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that special circumstances make the award unjust; and (3) the requested fees

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and costs are reasonable. 28 U.S.C. §§ 2412(d)(1)(A), 2412(d)(2)(A).

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There is no dispute here that plaintiff was the prevailing party. But the

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Commissioner contends that her position was substantially justified, and also

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challenges the reasonableness of the fees sought.

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B.

The Government Has Failed to Show That Its Position Was

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Substantially Justified

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In opposing an award of EAJA fees, “[t]he government has the burden of

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proving its positions were substantially justified.” Hardisty v. Astrue, 592 F.3d

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1072, 1076 n.2 (9th Cir. 2010) (citing Flores v. Shalala, 49 F.3d 562, 569 (9th

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Cir. 1995)). “Substantially justified” means “‘justified in substance or in the

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main’ – that is, justified to a degree that could satisfy a reasonable person.”

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Pierce v. Underwood, 487 U.S. 552, 565, 108 S. Ct. 2541, 101 L. Ed. 2d 490

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(1988); accord Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008); Lewis v.

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Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). In other words, the

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government’s position must have had a “reasonable basis in both law and fact.”

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Pierce, 487 U.S. at 565 (internal quotation marks and citations omitted);

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accord Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008).

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Where, as here, the ALJ’s decision was reversed on the basis of

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procedural errors, the question is not whether the government’s

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position as to the merits of [the claimant’s] disability claim was
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substantially justified. Rather, the relevant question is whether the

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government’s decision to defend on appeal the procedural errors

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committed by the ALJ was substantially justified.

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Shafer, 518 F.3d at 1071 (citations omitted).

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“The ‘position of the United States’ includes both the government’s

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litigation position and the underlying agency action giving rise to the civil

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action.” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (citations omitted).

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Thus, in deciding whether the government’s position was substantially

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justified, the court must look at both the ALJ’s decision and the government’s

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litigation position. Id. at 870-72. In addition, the question is whether the

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Commissioner’s position was substantially justified with respect to the issue on

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which the court based its remand. Lewis, 281 F.3d at 1085.

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The fact that plaintiff prevailed does not settle the question of whether

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the Commissioner was substantially justified in her position. “[A] position can

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be justified even though it is not correct, and we believe it can be substantially

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(i.e., for the most part) justified if a reasonable person could think it correct,

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that is, if it has a reasonable basis in law and fact.” Pierce, 487 U.S. at 566 n.2;

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accord Lewis, 281 F.3d at 1083; see Le, 529 F.3d at 1201 (“Though incorrect,

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the commissioner’s position was substantially justified within the meaning of

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the fee statute.”). Nonetheless, “it will be only a ‘decidedly unusual case in

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which there is substantial justification under the EAJA even though the

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agency’s decision was reversed as lacking in reasonable, substantial and

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probative evidence in the record.’” Thangaraja v. Gonzales, 428 F.3d 870, 874

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(9th Cir. 2005) (citation omitted).

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Here, this court found the ALJ erred on the only issue raised by plaintiff,

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the issue of whether the ALJ properly discounted plaintiff’s credibility.

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Defendant argues that her position was substantially justified, however,

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because the court found that of the five reasons given by the ALJ for
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discounting plaintiff’s credibility, two were clear and convincing, and only on

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balance did the court conclude that these two reasons by themselves did not

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constitute substantial evidence to support the ALJ’s adverse credibility

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determination.

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Defendant is correct that the court found two of the five reasons to be

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clear and convincing, but this does not make the government’s position

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substantially justified. As to the other three reasons provided by the ALJ for

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discounting plaintiff’s credibility, the court found: the ALJ ignored evidence in

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the record that plaintiff took only over-the-counter medicine for his pain due to

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lack of medical insurance and funds; the ALJ somewhat misstated the record

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and failed to make specific findings to justify his conclusion that the diagnostic

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evidence did not support plaintiff’s claims; and the ALJ had no basis to find

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there should have been documentation in the chiropractic records to support

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plaintiff’s use of a cane. The ALJ’s errors in giving these as reasons to

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discount plaintiff’s credibility were significant. Further, although the court

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found two of the reasons given to be clear and convincing, the court also found

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each of these reasons to be somewhat problematic. The court found it

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appropriate for the ALJ to consider that plaintiff waited a year to seek

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treatment, but at the same time noted the ALJ failed to consider the evidence

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that plaintiff’s poverty may have explained this delay. And while the court

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found plaintiff’s testimony that he went online to look for work two years after

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his onset date to be a clear and convincing reason to discount his claimed

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inability to work, the court also noted that the ALJ’s characterization of

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plaintiff’s efforts as having sought employment throughout the two-year period

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to be somewhat misleading.

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On balance, the ALJ was not substantially justified in discounting

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plaintiff’s credibility, and the Commissioner was not substantially justified in

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defending the ALJ’s credibility determination (with all the procedural errors
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made by the ALJ) on appeal to this court. Because the Commissioner was not

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substantially justified in her position, plaintiff is entitled to EAJA fees. The

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question, then, is the amount of the fees.

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C.

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Determination of the Reasonableness of the Requested Fees
“[O]nce a private litigant has met the multiple conditions for eligibility

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for EAJA fees, the district court’s task of determining what fee is reasonable is

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essentially the same as that described in Hensley.” Comm’r, I.N.S. v. Jean, 496

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U.S. 154, 161, 110 S. Ct. 2316, 110 L. Ed. 2d 134 (1990). There, the Supreme

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Court described a process in which the court must start with the lodestar

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claimed by the prevailing counsel, determine whether the documentation

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submitted in support of the claimed lodestar is adequate, and exclude any hours

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that were not “reasonably expended.” Hensley v. Eckerhart, 461 U.S. 424,

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433-34, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). In addition, “other

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considerations . . . may lead the district court to adjust the fee upward or

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downward, including the important factor of the ‘results obtained,’”

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particularly in cases in which the plaintiff “succeeded on only some of his

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claims for relief.” Id. at 434.

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Reasonableness of Hours Spent

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Defendant contends that the fees sought by plaintiff are unreasonable, in

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that the hours spent were excessive. Defendant argues that plaintiff’s counsel

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should have spent no more than 10 hours preparing the Memorandum in

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Support of Complaint, rather than the 15.6 hours actually spent. Defendant

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also argues that plaintiff’s counsel’s failure to meet and confer in good faith

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before filing the instant EAJA Motion warrants reducing the 1.8 hours spent in

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preparing a letter to defendant and the Motion to 1 hour.

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Here, plaintiff has submitted a declaration detailing the hours spent on

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this matter and the basis for the fees calculated. See Rosales Decl. ¶ 2, Ex. 1.

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The court finds plaintiff’s counsel has adequately documented the time spent.
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Defendant argues that it was unreasonable for counsel to spent 15.6 hours

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preparing a Memorandum that raised only one issue on which the law is well-

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settled. If that time were spent only in preparing the Memorandum,

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defendant’s point may be well taken. But the 15.6 hours spent by counsel

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included time spent reviewing the record. Although counsel ultimately

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determined to raise only one issue, that determination does not reduce the time

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he reasonably spent reviewing the record to determine if there were other issues

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that merited appeal. On balance, the court does not find the 15.6 hours spent to

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be excessive.

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The court is troubled that plaintiff’s counsel apparently made no real

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effort to meet and confer before filing the instant Motion, as he prepared and

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sent a letter regarding EAJA fees to defense counsel the same day he prepared

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and filed the EAJA Motion. Plaintiff was entitled to spend time pursuing

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EAJA fees, and the court will not reduce the 1.5 hours counsel reasonably

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spent preparing this Motion. See Jean, 496 U.S. at 161 (“[A]bsent

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unreasonably dilatory conduct by the prevailing party in ‘any portion’ of the

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litigation, which would justify denying fees for that portion, a fee award

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presumptively encompasses all aspects of the civil action.”). But since the .3

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hours spent by plaintiff’s counsel in preparing a letter to defense counsel was

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apparently not spent in a good faith effort to reach agreement on EAJA fees,

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the court will eliminate this time from the fee award.

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2.

Fee Calculation

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The court therefore finds all but .3 of the 18.1 total hours that counsel

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spent on plaintiff’s case to be reasonable. The court also finds the 3.2 paralegal

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hours (which defendant does not challenge) to be reasonable.

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Under the EAJA, attorney fees were capped at a maximum rate of $125

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per hour as of March 1996, “plus any ‘cost of living’ and ‘special factor’

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adjustments.” Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). Based
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on cost of living increases, plaintiff claims attorneys fees at a rate of $187.02

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per hour for 2013 and of $189.78 per hour for 2014, based on the formula

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approved in Thangaraja, 428 F.3d at 876-77. Plaintiff also claims paralegal

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fees at a rate of $137 per hour. Defendant does not object to these rates, and

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the court accepts these rates.
Accordingly, the court finds, as required under the EAJA, that an EAJA

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fee award of $3,772.05 is reasonable, calculated as follows: (3.2 hours x

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$137.00, or $438.40 for paralegal work) + (16.1 hours x $187.02, or $3,011.02

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for 2013 attorney work) + (1.7 hours x $189.78, or $322.63 for 2014 attorney

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work).

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D.

Fees Are Awarded to Plaintiff, But Have Been Validly Assigned to

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Plaintiff’s Counsel

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The Supreme Court has held that an EAJA award to a prevailing party is

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payable to the litigant, as opposed to the litigant’s attorney, and is therefore

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subject to a government offset to satisfy a pre-existing debt the litigant owes

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the United States. Astrue v. Ratliff, 560 U.S. 586, 591-98, 130 S. Ct. 2521, 177

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L. Ed. 2d 91 (2010). But the Supreme Court has also recognized that fee

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awards may be – and regularly are – paid directly by the government to counsel

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where the prevailing party has assigned its right to receive the fees to its

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attorney and where the party does not owe a debt to the government. Id. at 597.

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In this case the parties apparently do not presently know if plaintiff owes a debt

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to the United States, and hence they advocate for different approaches.

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Plaintiff argues that the EAJA award should be paid directly to counsel

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pursuant to plaintiff’s valid assignment of EAJA fees to his attorney (see

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Rosales Decl., Ex. 3, ¶ 4), subject government offset. Defendant argues that

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any EAJA award should be payable to plaintiff, but that after such award the

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government would consider assignment of the fees to counsel after determining

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whether they are subject to any offset.
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As a practical matter, it appears to the court that the two approaches

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would ultimately have similar if not identical outcomes. Defendant argues that

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plaintiff’s approach would require the Department of Treasury to appear as a

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party to this case and disclose information about any offset to plaintiff’s

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counsel. The court does not read plaintiff’s approach as requiring anything of

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the sort. Under both approaches, the government would be required to

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determine whether any offset applies before EAJA fees are paid. The only

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difference the court can see is that under defendant’s approach it would

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somehow be optional whether the government chose to recognize the

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assignment and make fees payable to counsel rather than plaintiff after any

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offset is determined. This approach is far more ambiguous.

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Accordingly, the court finds, as have a number of other courts post-

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Ratliff, that although EAJA fees are subject to a government offset to satisfy

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any pre-existing debt plaintiff owes the government, after any such offset

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plaintiff’s counsel is entitled to direct payment of the EAJA award since there

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has been a valid assignment. See, e.g., Ramirez v. Colvin, 2013 WL 4039066,

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at *4 (C.D. Cal. Aug. 6, 2013); Coffey v. Astrue, 2013 WL 120030, at *4 (N.D.

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Cal. Jan. 8, 2013).

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III.

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ORDER

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For the reasons discussed above, plaintiff’s Motion is GRANTED, and

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plaintiff is awarded total EAJA fees of $3,772.05. The Commissioner shall pay

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such EAJA fees, subject to any offset to which the government is legally

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entitled, directly to plaintiff’s counsel.

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DATED: February 23, 2015

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SHERI PYM
UNITED STATES MAGISTRATE JUDGE

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