Jose L. Lucio v. Carolyn W. Colvin

Filing 32

ORDER GRANTING EAJA FEES by Magistrate Judge Shashi H. Kewalramani that Plaintiff's Motion [ECF No. 26 ] is GRANTED, as amended by Plaintiff's Reply brief [ECF No. 31]. Plaintiff is awarded $5,977.90 for attorney fees and $400.00 for costs. The Commissioner shall pay such EAJA fees, subject to any offset to which the Government is legally entitled. (jp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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JOSE L. LUCIO,

Case No. 8:17-cv-00046-SHK
Plaintiff,
v.

ORDER GRANTING EAJA FEES

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff Jose L. Lucio (“Plaintiff”) brought this action for judicial review of

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the Commissioner of the Social Security Administration’s (“Commissioner,”

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“Agency,” or “Defendant”) final decision denying his applications for disability

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

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Titles II and XVI of the Social Security Act (the “Act”). Electronic Case Filing

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Number (“ECF No.”) 1, Complaint. After the Court reversed the

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Commissioner’s decision to deny Plaintiff’s DIB and SSI applications under

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sentence four of 42 U.S.C. section 405(g) and remanded the case back to the

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Agency for further proceedings on June 4, 2018, Plaintiff moved for attorney fees

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totaling $5,596.42, and costs totaling $400.00, under the Equal Access to Justice

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Act (“EAJA”), 28 U.S.C. §§ 1920 and 2412, on August 27, 2018. ECF No. 24,

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Opinion and Order (“Order”); ECF No. 25, Judgment; ECF No. 26, Plaintiff’s

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Motion for Attorney’s Fees Under EAJA (“Motion”).
In Plaintiff’s Motion, Plaintiff indicated that “the parties were unable to

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reach an agreement with regard to the payment of attorney’s fees that both

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considered fair under the circumstances of this case.” ECF No. 27, Memorandum

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of Points and Authorities in Support of Plaintiff’s Motion at 3. The Court,

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therefore, ordered Defendant to respond to Plaintiff’s Motion, and Plaintiff to

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reply to Defendant’s Response. ECF No. 29, Order Re: Motion. The parties

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timely responded and replied. ECF No. 30, Defendant’s Opposition to Plaintiff’s

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Motion (“Response”); ECF No. 31, Plaintiff’s Reply to Defendant’s Response

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(“Reply”). In Plaintiff’s Reply, Plaintiff sought an increased attorney fee award

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totaling $5,977.90 for the additional 1.9 hours of work Plaintiff incurred while

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replying to Defendant’s Response. ECF No. 31, Reply at 3-4. For the following

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reasons, Plaintiff’s Motion, as amended by Plaintiff’s Reply, is GRANTED.
I.

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DISCUSSION

Defendant argues that Plaintiff’s Motion should be denied because “special

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circumstances exist that would make an award of fees unjust, and because the

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government was substantially justified.” ECF No. 30, Response at 8.
“[EAJA] departs from the general rule that each party to a lawsuit pays his

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or her own legal fees.” Hoa Hong Van v. Barnhart, 483 F.3d 600, 604 (9th Cir.

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2007) (citations and internal quotation marks omitted). Instead, EAJA authorizes

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the Court to “award to a prevailing party other than the United States fees and

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other expenses . . . incurred by that party in any civil action . . . unless the court

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finds that the position of the United States was substantially justified or that special

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circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); Meier v.

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Colvin, 727 F.3d 867, 870 (9th Cir. 2013).

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A.

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Special Circumstance Making A Fee Award Unjust Is Not
Present.

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Defendant argues that “special circumstances exist that make an award of

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fees unjust” in this case because Plaintiff’s attorney, “failed to identify the issue

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upon which the Court remanded.” ECF No. 30, Response at 3. Specifically,

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Defendant argues that the Court sua sponte raised the issue of “whether the ALJ

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properly considered the medical opinions of Drs. Strahle and Woods in finding

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Plaintiff’s mental impairments nonsevere.” Id. at 4. Defendant argues that

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because Plaintiff’s attorney’s “work product failed to procure any appreciable

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benefit for his client, an award of fees would be unjust.” Id.
Plaintiff argues that Defendant’s argument fails because “[t]he argument

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takes an impermissibly narrow view of the arguments raised by Plaintiff.” ECF No.

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31, Reply at 2. Plaintiff argues that “[t]he Court agreed with his primary argument

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at step two that there was a lack of substantial evidence supporting the finding that

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Plaintiff does not have severe PTSD.” Id.
When remanding the case back to the Agency for further proceedings, the

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Court observed that following the administrative law judge’s (“ALJ”) unfavorable

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decision, Plaintiff’s counsel submitted additional arguments and evidence to the

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Appellate Council (“AC”) when requesting AC review of the ALJ’s decision.

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ECF No. 24, Order at 8. The Court further observed that the AC considered the

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arguments and evidence submitted by Plaintiff’s counsel, and without providing

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any “further discussion or analysis of the additional evidence Plaintiff

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submitted[,]” the AC “found that neither ‘provide[d] a basis for changing the

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[ALJ’s] decision.’” Id. (quoting Tr. 2). The Court then provided a nearly six-page

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summary of the evidence that Plaintiff’s counsel submitted to the AC in support of

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AC review. Id. at 9-14. Included in the evidence discussed by the Court were the

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medical opinions of Drs. Strahle and Woods. Id.

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After observing the three assignments of error that Plaintiff alleged on

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district court review, the Court examined Plaintiff’s first argument—that the ALJ

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erred by finding that Plaintiff’s PTSD was nonsevere—and found that “the later

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submitted opinions of Drs. Strahle and Woods suggest that the limitations caused

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by Plaintiff’s PTSD are more severe than the ALJ recognized in her unfavorable

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decision.” Id. at 15. The Court, therefore, concluded that “[b]ecause Drs. Strahle

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and Woods endorsed far greater limitations than the ALJ recognized, . . . the ALJ’s

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conclusion—that Plaintiff’s PTSD was nonsevere and imposed no more than

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minimal limitations in Plaintiff’s ability to work—is not supported by substantial

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evidence.” Id.
“EAJA . . . has a built-in check: Section 2412(d)(1)(A) disallows fees where

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‘special circumstances make an award unjust.’” Scarborough v. Principi, 541 U.S.

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401, 422-23 (2004). Specifically, “§ 2412(d)(1)(A)’s safety valve gives the court

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discretion to deny awards where equitable considerations dictate an award should

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not be made.” Id. at 423 (citation and internal quotation marks omitted).

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Here, Plaintiff’s counsel’s work product included arguments to the AC and

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this Court that the ALJ’s finding that Plaintiff’s PTSD was nonsevere was not

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supported by substantial evidence, as well as the medical evidence Plaintiff’s

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counsel submitted to the AC. This evidence, which the AC made part of the

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record, ultimately provided the evidentiary basis for this Court’s conclusion that

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the Commissioner’s decision was not supported by substantial evidence in the

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record. See Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir.

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2012) (“[W]hen a claimant submits evidence for the first time to the [AC], which

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considers that evidence in denying review of the ALJ’s decision, the new evidence

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is part of the administrative record, which the district court must consider in

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determining whether the commissioner’s decision is supported by substantial

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evidence.”); see also 42 U.S.C. § 405(g) (Regardless of whether the AC refuses to

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review an ALJ’s decision, or reviews and affirms the ALJ’s decision, the ALJ’s
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decision nevertheless becomes the final or ultimate decision of the Commissioner,

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which the federal “court shall have the power . . . to enter a judgment affirming,

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modifying, or reversing the decision of the Commissioner . . . , with or without

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remanding the cause for rehearing.”).

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Accordingly, because Plaintiff’s counsel raised the issue of the severity

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Plaintiff’s PTSD both before the AC and this Court, and supplemented the record

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with additional evidence that ultimately provided the evidentiary basis for the

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Court’s decision, the Court finds that special circumstances that would make an

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award unjust are not present here. Scarborough, 541 U.S. at 422-23.

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B.

Government’s Position Was Not Substantially Justified.

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Defendant argues that its position was “substantially justified both in the

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underlying action and in its litigation position before this Court” and, therefore,

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Plaintiff’s Motion should be denied. ECF No. 30, Response at 5. Defendant raises

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two specific points in support of this argument. Id. at 6. First, Defendant argues

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that “Dr. Woods submitted her opinion more than a year after the ALJ issued her

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decision and, therefore, the opinion was outside the scope of the relevant time

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period.” Id. Second, Defendant argues that “Drs. St[r]ahle’s and Wood’s opined

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[sic] marked mental limitations directly contradicted the clinical record, the

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opinions of Drs. Duffy and Fernandez, and Plaintiff’s acknowledged activities.”

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Id.

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“It is the government’s burden to show that its position was substantially

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justified.” Meier, 727 F.3d at 870 (citation omitted). “Substantial justification

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means ‘justified in substance or in the main—that is, justified to a degree that

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could satisfy a reasonable person.’” Id. (quoting Pierce v. Underwood, 487 U.S.

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552, 565 (1988). “Put differently, the government’s position must have a

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‘reasonable basis both in law and fact.’” Id. (quoting Pierce, 487 U.S. at 565)).

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“The position of the United States includes both the government’s litigation
position and the underlying agency action giving rise to the civil action.” Id.
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(citation and internal quotation marks omitted). “As EAJA provides, position of

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the United States means, in addition to the position taken by the United States in

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the civil action, the action or failure to act by the agency upon which the civil action

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is based.” Id. (citation, emphasis, and internal quotation marks omitted). “The

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ALJ’s decision, therefore, is directly and literally ‘the action or failure to act by the

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agency upon which the civil action is based’ . . . [and] EAJA’s plain language thus

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directs courts to focus on the ALJ’s decision.” Id. at 870-71 (quoting 28 U.S.C.

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§ 2412(d)(2)(D)). “This court and other circuits have held that a holding that the

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agency’s decision . . . was unsupported by substantial evidence is . . . a strong

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indication that the position of the United States . . . was not substantially justified.”

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Id. at 782 (citation and internal quotation marks omitted). Moreover, “[t]he

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government’s position must be substantially justified at each stage of the

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proceedings” and “the government’s litigation position—[when] defending the

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ALJ’s errors on appeal—lack[s] the requisite justification.” Id. at 782-83.

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Here, the Court is unpersuaded by Defendant’s first argument: that the

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government’s position was substantially justified because Dr. Woods’ opinion was

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submitted after the ALJ’s decision was rendered and was, therefore, outside of the

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relevant time period. ECF No. 30, Response at 5-6. Plaintiff alleged disability

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beginning on December 1, 2011. Tr. 195-202. On May 18, 2015, the ALJ

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determined that Plaintiff had not been under a disability, from the alleged onset

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date through the date of the decision. Tr. 28. Thus, the relevant time period was

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December 2011 through May 2015.

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As discussed above and explained in the Court’s Order, Plaintiff’s counsel

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supplemented the record with two opinions from Dr. Woods from May and July of

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2016. ECF No. 24, Order at 11, 12. In Dr. Woods’ July 2016 opinion, Dr. Woods

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explained that “Plaintiff would be absent more than three times per month as a

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result of his ‘impairments or treatment’ and that Plaintiff’ symptoms apply as far

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back as 2008.” Id. at 14 (quoting Tr. 460). Accordingly, because Dr. Woods’ July
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2016 opinion covers the time period from 2008 through July 2016 and, therefore,

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encompasses the entire relevant time period, the Court rejects Defendant’s

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argument that Dr. Woods’ opinion does not pertain to the relevant time period.

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With respect to Defendant’s second argument—that the government’s

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position was substantially justified because Drs. Strahle’s and Woods’ opinions are

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contradicted by other evidence in the record—the Court is, again, unpersuaded.

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As discussed above and at length in the Court’s Order, following the ALJ’s

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unfavorable decision, Plaintiff’s counsel submitted medical evidence that the Court

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found “suggest that the limitations caused by Plaintiff’s PTSD are more severe

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than the ALJ recognized in her unfavorable decision.” ECF No. 24, Order at 15.

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The AC considered the evidence and made it part of the record, but found that the

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evidence “does not provide a basis for changing the [ALJ’s] decision.” Tr. 2.

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Thereafter, the ALJ’s decision became the final decision of the Commissioner. 42

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U.S.C. § 405(g).

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Defendant’s post-hoc arguments in opposition to Plaintiff’s Motion do not

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change the Court’s finding that “the ALJ’s conclusion—that Plaintiff’s PTSD was

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nonsevere and imposed no more than minimal limitations in Plaintiff’s ability to

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work”—and the Commissioner’s resulting conclusion—“that Plaintiff has not

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been under a disability, as defined in the Act during the relevant time period”—are

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not supported by substantial evidence. ECF No. 24, Order at 15; see Allen v.

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Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (When there is conflicting medical

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evidence, “it is the ALJ’s role to determine credibility and to resolve the

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conflict.”) (citation omitted); see also Stout v. Comm’r Soc. Sec. Admin., 454 F.3d

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1050, 1054 (9th Cir. 2006) (the Court cannot affirm the ALJ’s decision on grounds

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not invoked by the Commissioner) (citation omitted).

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Accordingly, because both of Defendant’s arguments opposing Plaintiff’s

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Motion fail, the Court finds that Defendant has failed to meet its burden of showing

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that its position, which “includes both the government’s litigation position and the
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underlying agency action giving rise to the civil action[,]” was substantially

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justified. Meier, 727 F.3d at 870 (citation and internal quotation marks omitted).

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As such, the Court finds that EAJA fees are warranted here and turns next to the

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reasonableness of the amount Plaintiff seeks.

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C.

Plaintiff’s Fee Request Was Reasonable.

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Federal courts assess the reasonableness of fee requests, including requests

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in social security cases, using the “lodestar” method. Costa v. Comm’r Soc. Sec.

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Admin, 690 F.3d 1132, 1135 (9th Cir. 2012). “To calculate the lodestar amount,

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the court multiplies ‘the number of hours reasonably expended on the litigation . . .

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by a reasonable hourly rate.’” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433

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(1983)). The court then may adjust the lodestar upward or downward based on “a

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host of reasonableness factors, including the quality of representation, the benefit

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obtained . . . , the complexity and novelty of the issues presented, and the risk of

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nonpayment.” Stetson v. Grissom, 821 F.3d 1157, 1166–67 (9th Cir. 2016) (citation

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and internal quotation marks omitted).

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Here, Plaintiff’s counsel was successful in helping Plaintiff obtain a reversal

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of the Commissioner’s unfavorable decision and a remand for further proceedings.

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Plaintiff’s counsel spent 28.4 hours pursuing the reversal and another 1.9 hours

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replying to Defendant’s opposition to Plaintiff’s fee award, at hourly rates of

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$196.79 and $200.78 for work performed in 2017 and 2018. ECF No. 27, Motion at

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4; ECF No. 31, Reply at 3. Defendant does not challenge the amount of Plaintiff’s

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fee award. The Court finds that the number of hours Plaintiff’s counsel expended

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on the litigation, as well as the hourly rate Plaintiff’s counsel seeks for the work

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performed, are reasonable. As such, the Court finds that the $5,977.90 for attorney

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fees, as amended in Plaintiff’s Reply, and the $400.00 for costs that Plaintiff seeks

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under EAJA is reasonable.

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II.

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CONCLUSION

Accordingly, IT IS HEREBY ORDERED that Plaintiff’s Motion [ECF No.

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26] is GRANTED, as amended by Plaintiff’s Reply brief [ECF No. 31]. Plaintiff is

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awarded $5,977.90 for attorney fees and $400.00 for costs. The Commissioner

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shall pay such EAJA fees, subject to any offset to which the Government is legally

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entitled.

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IT IS SO ORDERED.

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DATED: 10/2/2018

________________________________
HONORABLE SHASHI H. KEWALRAMANI
United States Magistrate Judge

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