Kirk v. Commissioner of Social Security

Filing 35

ORDER GRANTING in PART 30 Motion for Attorney Fees, signed by Magistrate Judge Edmund F. Brennan on 3/22/17. Plaintiff is AWARDED attorney's fees under the EAJA in the amount of $19,804.25, plus$114.10 for costs, for a total aw ard of $19,918.35. Pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), any payment shall be made payable to plaintiff and delivered to plaintiff's counsel, unless plaintiff does not owe a federal debt. If the United States Department of the Treasury determines that plaintiff does not owe a federal debt, the government shall accept plaintiff's assignment of EAJA fees and pay fees directly to plaintiff's counsel. (Kastilahn, A)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 VONDA K. KIRK, 11 Plaintiff, 12 13 14 No. 2:13-cv-2571-EFB v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 15 16 Plaintiff moves for an award of attorneys’ fees under the Equal Access to Justice Act 17 18 (“EAJA”), 28 U.S.C. § 2412(d)(1). ECF No. 30. She seeks fees based on 95.7 hours of work 19 performed by attorney Barbara Rizzo at a rate of $190.06 per hour. She seeks costs in the amount 20 of $114.10. Id. at 2. Plaintiff also seeks an additional 10 hours at $190.06 for reviewing and 21 preparing a reply to defendant’s opposition to her fee motion, for a total amount of $20,089.34. 22 ECF No. 33 at 14. Defendant argues that plaintiff is not entitled to reasonable attorney fees under 23 the EAJA because the Commissioner’s position was substantially justified. ECF No. 32. 24 Alternatively, she argues that the number of hours sought is unreasonable and should be reduced 25 accordingly. Id. 26 ///// 27 ///// 28 ///// 1 1 I. Substantial Justification 2 The EAJA provides that a prevailing party other than the United States should be awarded 3 fees and other expenses incurred by that party in any civil action brought by or against the United 4 States, “unless the court finds that the position of the United States was substantially justified or 5 that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1). “[T]he ‘position of 6 the United States’ means, in addition to the position taken by the United States in the civil action, 7 the action or failure to act by the agency upon which the civil action is based.” Gutierrez v. 8 Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001) (citing 28 U.S.C. § 2412(d)(2)(D) and Comm’r, 9 INS v. Jean, 496 U.S. 154, 159 (1990) (explaining that the “position” relevant to the inquiry “may 10 encompass both the agency’s prelitigation conduct and the [agency’s] subsequent litigation 11 positions”)). Therefore, the court “must focus on two questions: first, whether the government 12 was substantially justified in taking its original action; and, second, whether the government was 13 substantially justified in defending the validity of the action in court.” Kali v. Bowen, 854 F.2d 14 329, 332 (9th Cir.1988). The burden of establishing substantial justification is on the 15 government. Gutierrez, 274 F.3d at 1258 (9th Cir. 2001). 16 A position is “substantially justified” if it has a reasonable basis in law and fact. Pierce v. 17 Underwood, 487 U.S. 552, 565-66 (1988); United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir. 18 2002). Substantially justified has been interpreted to mean “justified to a degree that could satisfy 19 a reasonable person” and “more than merely undeserving of sanctions for frivolousness.” 20 Underwood, 487 U.S. at 565; see also Marolf, 277 F.3d at 161. The mere fact that a court 21 reversed and remanded a case for further proceedings “does not raise a presumption that [the 22 government’s] position was not substantially justified.” Kali, 854 at 335; see also Lewis v. 23 Barnhart, 281 F.3d 1081, 1084-86 (9th Cir. 2002) (finding the defense of an ALJ’s erroneous 24 characterization of claimant’s testimony was substantially justified because the decision was 25 supported by a reasonable basis in law, in that the ALJ must assess the claimant’s testimony and 26 may use that testimony to define past relevant work as actually performed, as well as a reasonable 27 basis in fact, since the record contained testimony from the claimant and a treating physician that 28 cast doubt on the claimant’s subjective testimony); Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2 1 2008) (finding that the government’s position that a doctor the plaintiff had visited five times over 2 three years was not a treating doctor, while incorrect, was substantially justified since a 3 nonfrivolous argument could be made that the five visits over three years were not enough under 4 the regulatory standard especially given the severity and complexity of plaintiff’s alleged mental 5 problems). 6 However, when the government violates its own regulations, fails to acknowledge settled 7 circuit case law, or fails to adequately develop the record, its position is not substantially justified. 8 See Gutierrez, 274 F.3d at 1259-60; Sampson v. Chater, 103 F.3d 918, 921-22 (9th Cir. 1996) 9 (finding that the ALJ’s failure to make necessary inquiries of the unrepresented claimant and his 10 mother in determining the onset date of disability, as well as his disregard of substantial evidence 11 establishing the same, and the Commissioner’s defense of the ALJ’s actions, were not 12 substantially justified); Flores v. Shalala, 49 F.3d 562, 570, 572 (9th Cir. 1995) (finding no 13 substantial justification where ALJ ignored medical reports, both in posing questions to the VE 14 and in his final decision, which contradicted the job requirements that the ALJ deemed claimant 15 capable of performing); Corbin v. Apfel, 149 F.3d 1067, 1053 (9th Cir. 1998) (finding that the 16 ALJ’s failure to determine whether the claimant’s testimony regarding the impact of excess pain 17 she suffered as a result of her medical problems was credible, and whether one of her doctors’ 18 lifting restrictions was temporary or permanent, and the Commissioner’s decision to defend that 19 conduct, were not substantially justified); Crowe v. Astrue, 2009 WL 3157438, *1 (E.D. Cal. 20 Sept. 28, 2009) (finding no substantial justification in law or fact based on ALJ’s improper 21 rejection of treating physician opinions without providing the basis in the record for so doing); 22 Aguiniga v. Astrue, 2009 WL 3824077, *3 (E.D. Cal. Nov.13, 2009) (finding no substantial 23 justification in ALJ’s repeated mischaracterization of the medical evidence, improper reliance on 24 the opinion of a non-examining State Agency physician that contradicted the clear weight of the 25 medical record, and improperly discrediting claimant’s subjective complaints as inconsistent with 26 the medical record). 27 28 Here, the court granted plaintiff’s motion for summary judgment and remanded the matter to the Commissioner for further proceedings, finding that the ALJ failed to consider all of 3 1 plaintiff’s impairments and failed to provide legally sufficient reasons for discounting plaintiff’s 2 subjective complaints. As this court observed, the ALJ failed to adequately consider plaintiff’s 3 back pain, bowel incontinence, migraines, and fibromyalgia in assessing her residual functional 4 capacity. ECF No. 28 at 5-9. “In determining a claimant’s residual functional capacity, the ALJ 5 must consider all of a claimant’s determinable impairments, including those that are not server.” 6 Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014). Given the failure to consider all of 7 plaintiff’s impairments, which the ALJ was required to do, the Commissioner’s position is not 8 substantially justified. 9 The Commissioner’s defense of the ALJ’s decision also lacks substantial justification. 10 The ALJ’s failure to provide legally adequate reasons for rejecting statements from plaintiff and 11 third parties was contrary to controlling law in this circuit. While an absence of objective test 12 findings to account for allegations of pain is a legitimate factor to consider, the Ninth Circuit has 13 made clear that an ALJ may not reject a claimant’s pain testimony based solely on a finding that 14 his or allegations are not supported by objective medical evidence. See Bunnell v. Sullivan, 947 15 F.2d 341, 345 (9th Cir. 1991) (An ALJ “may not reject a claimant’s subjective complaints based 16 solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain.”); 17 Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005) (“Although lack of medical evidence cannot 18 form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his 19 credibility analysis.”). Despite this settled law, the ALJ provided no other reason for discounting 20 plaintiff’s allegations of limitations and pain. AR 38-40. The Commissioner was not 21 substantially justified in defending the ALJ’s disregard of Ninth Circuit authority. 22 The Commissioner suggests, however, that her position was substantially justified because 23 the court rejected plaintiff’s argument, in favor of the Commissioner’s position, that the ALJ 24 properly weighed the medical opinion evidence of record. This contention unduly focuses on 25 defendant’s success on a single argument. As a whole, the government’s position in this court 26 was that the ALJ’s decision that plaintiff was not disabled was supported by substantial evidence 27 and the properly legal standards were applied. As just explained, the ALJ did not apply the 28 ///// 4 1 proper legal standard and the Commissioner was not substantially justified in defending the ALJ’s 2 errors. Accordingly, the government’s position was not substantially justified. 3 II. 4 Reasonableness of Fee Request The Commissioner also argues that the number of hours counsel expended in litigating 5 this case was not reasonable. ECF No. 32 at 5-10. The EAJA directs the court to award a 6 reasonable fee. 28 U.S.C. § 2412(d)(2)(A). In determining whether a fee is reasonable, the court 7 considers the hours expended, the reasonable hourly rate and the results obtained. See Comm’r, 8 INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S. 424 (1983); Atkins v. Apfel, 154 9 F.3d 986 (9th Cir. 1998). “[E]xcessive, redundant, or otherwise unnecessary” hours should be 10 excluded from a fee award, and charges that are not properly billable to a client are not properly 11 billable to the government. Hensley, 461 U.S. at 434. An award of fees should be properly 12 apportioned to pursuing the stages of the case in which the government lacked substantial 13 justification.” Corbin, 149 F.3d 1053; Flores, 49 F.3d at 566-71. 14 Here, defendant does not object to plaintiff’s hourly rate but contends that the number of 15 hours expended by counsel was unreasonable.1 Defendant argues the number of hours spent 16 preparing the motion for summary judgment and the reply brief was excessive in light of the 17 routine nature of this case and the experience of counsel. Defendant further argues that plaintiff 18 impermissibly seeks fees for tasks performed prior to commencement of this action and clerical 19 or administrative tasks. 20 Having reviewed the record, the court cannot find that the number of hours expended by 21 counsel in briefing the merits of this case was unreasonable. Plaintiff seeks fees for 39.1 hours 22 for preparing her motion for summary judgment, and another 37.3 hours researching and drafting 23 a reply brief. See Declaration of Barbara M. Rizzo, Ex. B. Plaintiff’s motion for summary 24 judgment exceeded 40 pages, which included an extensive summary of the relevant facts which 25 necessarily followed a review of the administrative record and medical evidence that was before 26 the court for review. ECF No. 16. Her reply brief totaled 30 pages (excluding the table of 27 28 1 Defendant also does not object to plaintiff’s request for $114.10 for costs. 5 1 authorities) and thoroughly addressed all the arguments raised by defendant in her cross-motion 2 for summary judgment. ECF No. 27. While counsel expended a large number of hours in 3 briefing the merits—more than typically expended in social security cases—the court notes 4 counsel did not represent plaintiff at the administrative level and had to become familiar with the 5 case, which included a 1071-page administrative transcript containing more than 700 pages of 6 medical records. Given the size of the medical record and number of medical impairments 7 presented in this case, the court cannot agree with defendant’s characterization of this case as 8 “routine” or “straightforward.” Cf. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1134 9 n.1 (9th Cir. 2012) (“[T]he term ‘routine’ is a bit of a misnomer as social security disability cases 10 are often highly fact-intensive and require careful review of the administrative record, including 11 complex medical evidence.”). 12 Furthermore, the “expertise of plaintiff’s counsel does not make the hours expended 13 unreasonable.”2 Patterson v. Apfel, 99 F. Supp. 2d 1212, 1213 (C.D. Cal. 2000). “Social security 14 cases are fact-intensive and require a careful application of the law to the testimony and 15 documentary evidence, which must be reviewed and discussed in considerable detail.” Id. Here, 16 the brief submitted by plaintiff’s counsel was thorough and evidenced such attention to detail. 17 Defendant next argues that plaintiff’s request should be reduced by 2.3 hours for work 18 performed prior to commencing the civil action. ECF No. 32 at 8-9. Defendant cites to 28 19 U.S.C. § 2412(d) and Melkonyan v. Sullivan, 501 U.S. 89 (1991), to support the proposition that 20 work performed prior to the filing of the complaint is not compensable under the EAJA. Neither 21 the statute nor Melkonyan support defendant’s contention. 22 Section 2412(d) provides that the “court shall award to a prevailing party . . . fees and 23 other expenses . . . incurred by that party in any civil action . . . .” 28 U.S.C. § 2412(d)(1)(A). 24 The statute does not, however, limit fees to work performed after the civil action is initiated. 25 Kuharski v. Colvin, 2015 WL 1530507, at *4 (E.D. Cal. Apr. 3, 2015). Indeed, courts have found 26 27 28 2 Prior to opening her own practice, plaintiff’s counsel worked as an Assistant Regional Counsel for the Social Security Administration, Office of the General Counsel, from 1995 to 1999. Declaration of Barbara M. Rizzo (ECF No. 30-1) ¶ 2. 6 1 that such work is necessary and compensable. See, e.g., Tate v. Colvin, 2013 WL 5773047, at *4 2 (E.D. Cal. 2013) (“As a practical matter, some work must be performed to initiate the civil suit— 3 a part of which includes reviewing the facts and the law to ensure the lawsuit is not frivolous as 4 well as drafting and filing the necessary documents to commence the action. Such work is wholly 5 separate from the underlying administrative proceedings and is clearly related to the civil action 6 . . . .”). 7 Furthermore, contrary to defendant’s contention, Melkonyan does not stand for the 8 proposition that “compensation is not permitted for work performed before a suit has been 9 brought in a court.” ECF No. 32 at 8 (quotations omitted). In Melkonyan, the Supreme Court 10 summarized and explained its prior holding in Sullivan v. Hudson, 490 U.S. 877 (1989). It 11 explained that in Sullivan, the court found that section 2412(d) permitted an award of fees for 12 work performed at the administrative level “in those cases where the district court retains 13 jurisdiction of the civil action and contemplates entering a final judgment following the 14 completion of administrative proceedings.” Melkonyan, 501 U.S. at 97. It further noted that in 15 Sullivan “[w]e did not say that proceedings on remand to an agency are ‘part and parcel’ of a civil 16 action in federal district court for all purposes.” Id. Thus, the section of Melkonyan cited by 17 defendant merely observes that administrative proceedings are generally not part of a civil action. 18 The court did not, however, address the issue as to whether work performed in preparation of 19 filing a civil complaint is compensable under the EAJA. Accordingly, Melkonyan does not 20 preclude plaintiff from recovering fees for work performed prior to the filing of the complaint. 21 Defendant also contends that plaintiff impermissibly seeks 2.5 hours for clerical tasks, 22 including preparation of service of process and consent forms, recording receipt of documents, 23 and typing letters. ECF No. 32 at 10. The Ninth Circuit has explained that “[i]t simply is not 24 reasonable for a lawyer to bill, at her regular hourly rate, for tasks that a non-attorney employed 25 by her could perform at a much lower cost.” Davis v. City & County of San Francisco, 976 F.2d 26 1536, 1543 (9th Cir. 1993). “It is appropriate to distinguish between legal work, in the strict 27 sense, and investigation, clerical work, compilation of facts and statistics and other work which 28 can often be accomplished by non-lawyers but which a lawyer may do because he has no other 7 1 help available.” Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989). “[C]osts associated with 2 clerical tasks are typically considered overhead expenses reflected in an attorney’s hourly billing 3 rate, and are not properly reimbursable.” Bakeell v. Astrue, 2013 WL 638892, at * 3 (D. Or. Jan. 4 9, 2013) (citing Jenkins, 491 U.S. at 288 n.10); see also Nadarajoh v. Holder, 569 F.3d 906, 921 5 (9th Cir. 2009) (reducing hours billed at paralegal rate for the performance of clerical work). 6 The court has reviewed counsel’s billing records and finds that counsel seeks 7 compensation for 2.5 hours spent preparing documents for representation (.5), drafting and filing 8 the complaint and other initiating documents (.8), completing and filing a consent to proceed 9 before a magistrate judge form (.1), and drafting letters and preparing documents related to 10 representation and service of process (1.1), all of which could have been completed by 11 experienced support staff. See Rizzo Decl., Ex. B. Such documents, including the complaint, are 12 boilerplate forms that could easily be completed by clerical staff by inserting minimal 13 information.3 See Reyna v. Astrue, 2011 WL 6100609, at * 2 (E.D. Cal. Dec. 6 2011) (time billed 14 “to prepare, review, and electronically file the complaint, IFP, and related documents was work 15 reasonably to be performed by an experienced legal secretary.”). However, the court 16 acknowledges that counsel would necessarily spend time reviewing such documents before their 17 submission. Accordingly, the court will reduce the request by only 1.5 hours. 18 Lastly, defendant argues that under Astrue v. Ratliff, 560 U.S. 586 (2010), any award must 19 be payable directly to plaintiff, and not counsel. ECF No. 32 at 10-12. Ratliff requires fees 20 awarded under the EAJA to be paid directly to the litigant. However, courts in this district 21 regularly order payment directly to counsel so long as plaintiff does not have a debt that is subject 22 to offset and the plaintiff assigned her right to EAJA fees to counsel. See, e.g., Allen v. Colvin, 23 2014 WL 6901870 at *3 (E.D. Cal. 2014); Knyazhina v. Colvin, 2014 WL 5324302 at *3 (E.D. 24 Cal. 2014); Louis v. Astrue, 2012 WL 92884 at *7 (E.D. Cal. 2012); Burnham v. Astrue, 2011 25 WL 6000265 at *2 (E.D. Cal. 2011); and Calderon v. Astrue, 2010 WL 4295583 at *8 (E.D. Cal. 26 27 28 3 Unlike civil complaints in other types of actions, which may require extensive factual allegations to support each claim for relief, complaints in social security disability cases consist largely of boilerplate. 8 1 2010). Here, plaintiff assigned her right to EAJA fees to her attorney. Rizzo Decl., Ex. A. 2 According, should plaintiff not have a debt that is subject to offset, the award of fees may be paid 3 directly to counsel. 4 III. 5 Conclusion Based on the foregoing, the court finds that the plaintiff’s counsel reasonably spent 94.2 6 hours litigating the merits of this case and preparing her motion for attorney’s fees. Furthermore, 7 counsel reasonably spent 10 hours reviewing defendant’s opposition to the fee motion and 8 preparing a reply brief. See Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998) (under the EAJA, 9 reasonable time spent litigating fees is compensable). Accordingly, the court finds that counsel 10 reasonably expended 104.2 hours, at a rate of $190.06 per hour, litigating this case, and incurred 11 $114.10 in costs. 12 Accordingly, it is hereby ORDERED that: 13 1. Plaintiff’s motion for attorney’s fees (ECF No. 30) is granted in part; 14 2. Plaintiff is awarded attorney’s fees under the EAJA in the amount of $19,804.25, plus 15 $114.10 for costs, for a total award of $19,918.35; 16 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), any payment shall be made payable 17 to plaintiff and delivered to plaintiff’s counsel, unless plaintiff does not owe a federal debt. If the 18 United States Department of the Treasury determines that plaintiff does not owe a federal debt, 19 the government shall accept plaintiff’s assignment of EAJA fees and pay fees directly to 20 plaintiff’s counsel. 21 DATED: March 22, 2017. 22 23 24 25 26 27 28 9

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