Young v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/2/2017 GRANTING IN PART 22 Motion for Attorney Fees. Plaintiff is awarded attorney's fees under the EAJA in the amount of $7,045.59, plus $60.00 for costs, for a total award of $7,105.59. 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. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GREGORY ALLAN YOUNG,

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No. 2:14-cv-2585-EFB

Plaintiff,
v.

ORDER

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

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Plaintiff moves for an award of attorneys’ fees and costs under the Equal Access to Justice

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Act (“EAJA”), 28 U.S.C. § 2412(d)(1). ECF No. 22. He seeks attorney fees based on 29.4 hours

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of work at a rate of $190.06, paralegal fees based on 3.7 hours of work at a rate of $125, and $60

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in costs. Plaintiff also seeks an additional 5.7 hours at $190.28 for reviewing and preparing a

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reply to defendant’s opposition to his fee motion for a total amount of $6,110.26.1 Defendant

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argues that plaintiff is not entitled to fees under the EAJA because defendant’s position was

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substantially justified. ECF No. 23. Alternatively, she argues that the number of hours sought is

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unreasonable and should be reduced accordingly. Id.

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Plaintiff actually requests $6,572.76 in fees and costs for litigating this case, plus an
additional $1084.70 for preparing a reply to defendant’s opposition to his fee motion. ECF No.
22 at 2. However, a review of counsel’s billing records indicates that plaintiff (presumably by
inadvertence) double counted the paralegal hours, and therefore impermissibly requested an
additional $462.50 in fees. See ECF No. 22-1.
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I.

Substantial Justification

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The EAJA provides that a prevailing party other than the United States should be awarded

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fees and other expenses incurred by that party in any civil action brought by or against the United

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States, “unless the court finds that the position of the United States was substantially justified or

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that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1). “[T]he ‘position of

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the United States’ means, in addition to the position taken by the United States in the civil action,

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the action or failure to act by the agency upon which the civil action is based.” Gutierrez v.

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Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001) (citing 28 U.S.C. § 2412(d)(2)(D) and Comm’r,

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INS v. Jean, 496 U.S. 154, 159 (1990) (explaining that the “position” relevant to the inquiry “may

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encompass both the agency’s prelitigation conduct and the [agency’s] subsequent litigation

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positions”)). Therefore, the court “must focus on two questions: first, whether the government

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was substantially justified in taking its original action; and, second, whether the government was

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substantially justified in defending the validity of the action in court.” Kali v. Bowen, 854 F.2d

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329, 332 (9th Cir.1988). The burden of establishing substantial justification is on the

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government. Gutierrez, 274 F.3d at 1258 (9th Cir. 2001).

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A position is “substantially justified” if it has a reasonable basis in law and fact. Pierce v.

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Underwood, 487 U.S. 552, 565-66 (1988); United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir.

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2002). Substantially justified has been interpreted to mean “justified to a degree that could satisfy

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a reasonable person” and “more than merely undeserving of sanctions for frivolousness.”

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Underwood, 487 U.S. at 565; see also Marolf, 277 F.3d at 161. The mere fact that a court

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reversed and remanded a case for further proceedings “does not raise a presumption that [the

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government’s] position was not substantially justified.” Kali, 854 at 335; see also Lewis v.

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Barnhart, 281 F.3d 1081, 1084-86 (9th Cir. 2002) (finding the defense of an ALJ’s erroneous

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characterization of claimant’s testimony was substantially justified because the decision was

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supported by a reasonable basis in law, in that the ALJ must assess the claimant’s testimony and

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may use that testimony to define past relevant work as actually performed, as well as a reasonable

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basis in fact, since the record contained testimony from the claimant and a treating physician that

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cast doubt on the claimant’s subjective testimony); Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir.
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2008) (finding that the government’s position that a doctor the plaintiff had visited five times over

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three years was not a treating doctor, while incorrect, was substantially justified since a

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nonfrivolous argument could be made that the five visits over three years were not enough under

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the regulatory standard especially given the severity and complexity of plaintiff’s alleged mental

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problems).

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However, when the government violates its own regulations, fails to acknowledge settled

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circuit case law, or fails to adequately develop the record, its position is not substantially justified.

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See Gutierrez, 274 F.3d at 1259-60; Sampson v. Chater, 103 F.3d 918, 921-22 (9th Cir. 1996)

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(finding that the ALJ’s failure to make necessary inquiries of the unrepresented claimant and his

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mother in determining the onset date of disability, as well as his disregard of substantial evidence

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establishing the same, and the Commissioner’s defense of the ALJ’s actions, were not

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substantially justified); Flores v. Shalala, 49 F.3d 562, 570, 572 (9th Cir. 1995) (finding no

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substantial justification where ALJ ignored medical reports, both in posing questions to the VE

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and in his final decision, which contradicted the job requirements that the ALJ deemed claimant

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capable of performing); Corbin v. Apfel, 149 F.3d 1067, 1053 (9th Cir. 1998) (finding that the

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ALJ’s failure to determine whether the claimant’s testimony regarding the impact of excess pain

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she suffered as a result of her medical problems was credible, and whether one of her doctors’

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lifting restrictions was temporary or permanent, and the Commissioner’s decision to defend that

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conduct, were not substantially justified); Crowe v. Astrue, 2009 WL 3157438, *1 (E.D. Cal.

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Sept. 28, 2009) (finding no substantial justification in law or fact based on ALJ’s improper

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rejection of treating physician opinions without providing the basis in the record for so doing);

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Aguiniga v. Astrue, 2009 WL 3824077, *3 (E.D. Cal. Nov.13, 2009) (finding no substantial

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justification in ALJ’s repeated mischaracterization of the medical evidence, improper reliance on

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the opinion of a non-examining State Agency physician that contradicted the clear weight of the

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medical record, and improperly discrediting claimant’s subjective complaints as inconsistent with

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the medical record).

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The court granted plaintiff’s motion for summary judgment and remanded the matter to

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the Commissioner for further proceedings, finding that the ALJ failed to adequately consider a
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VA disability determination finding that plaintiff is 100 percent disabled. ECF No. 20. As

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explained in the court’s order, the ALJ was required to provide a “persuasive, specific, valid”

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reason for according reduced weight to the VA’s disability determination. Id. at 5-7; see

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McCartey v. Massanari, 298 F.3d 1072, 1075 (9th Cir. 2002); Valentine v. Comm’r Soc. Sec.

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Admin., 574 F.3d 685,695(9th Cir. 2009). The ALJ failed to satisfy that standard and rejected the

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VA disability determination based on his conclusory finding that the medical evidence did not

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show that plaintiff was so limited. The ALJ, however, did not discuss or cite any evidence in the

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record that undermined the VA’s disability determination or supported the conclusory finding.

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As the ALJ failed to comply with the legal standard for this circuit, his decision was not

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supported by substantial evidence nor was his position substantially justified. See Meier v.

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Colvin, 727 F.3d 867, 872 (9th Cir. 2013) (“A holding that the agency’s decision was

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unsupported by substantial evidence is a strong indication that the position of the United States

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was not substantially justified.”); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)

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(“[I]t will be only a ‘decidedly unusual case in which there is substantial justification under the

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EAJA even though the agency’s decision was reversed as lacking in reasonable, substantial and

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probative evidence in the record.’”). Accordingly, the government’s position was not

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substantially justified. Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“The government’s

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position must be substantially justified at each state of the proceedings.”).

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II.

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Reasonableness of Fee Request
The Commissioner also argues that the number of hours counsel expended in litigating

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this case was unreasonable. ECF No. 23 at 10-11. The EAJA directs the court to award a

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reasonable fee. 28 U.S.C. § 2412(d)(2)(A). In determining whether a fee is reasonable, the court

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considers the hours expended, the reasonable hourly rate and the results obtained. See Comm’r,

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INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S. 424 (1983); Atkins v. Apfel, 154

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F.3d 986 (9th Cir. 1998). “[E]xcessive, redundant, or otherwise unnecessary” hours should be

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excluded from a fee award, and charges that are not properly billable to a client are not properly

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billable to the government. Hensley, 461 U.S. at 434. An award of fees should be properly

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apportioned to pursuing the stages of the case in which the government lacked substantial

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justification.” Corbin, 149 F.3d 1053; Flores, 49 F.3d at 566-71.

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Here, defendant does not object to plaintiff’s hourly rate but contends that the number of

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hours expended by plaintiff’s counsel and paralegal was unreasonable.2 ECF No. 23 at 10-11.

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First, defendant argues that the 28 hours plaintiff’s counsel spent researching and drafting the sole

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issue presented in plaintiff’s motion for summary judgment was excessive. Id. at 10. Defendant

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suggests that 20 hours is a more reasonable amount of time for completing the motion and reply

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brief. Id.

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Having reviewed the record, the court cannot find that the number of hours expended by

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counsel in briefing the merits of this case was unreasonable. While counsel spent 28 hours

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briefing the merits of this case (see ECF No. 22-1), which only included one issue, the court notes

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that counsel did not represent plaintiff at the administrative level and had to become familiar with

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the case, which included a 1,883-page administrative transcript containing more than 1,400 pages

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of medical records. Given the size of the medical record and number of medical impairments

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presented in this case, the court cannot agree with defendant’s contention that it was unreasonable

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for counsel to spend 28 hours reviewing the record and briefing the merits.

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Defendant next argues that plaintiff’s request should be reduced by .4 hours of attorney

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time and .2 hours of paralegal time spent reviewing a request for an extension of time filed by

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plaintiff. ECF No. 23 at10. Without conceding that billing for this task was unreasonable,

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plaintiff agrees to not seek compensation for this task. ECF No. 24 at 9 n.3. The court will

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therefore reduce plaintiff’s fee request by .4 attorney hours and .2 paralegal hours.

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III.

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Payment of Fees to Plaintiff
Defendant requests that any fee award be made to plaintiff. Astrue v. Ratliff, 560 U.S. 586

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(2010) requires fees awarded under the EAJA to be paid directly to the litigant. However, courts

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in this district regularly order payment directly to counsel so long as plaintiff does not have a debt

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that is subject to offset and the plaintiff assigned her right to EAJA fees to counsel. See, e.g.,

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Defendant also does not object to plaintiff’s request for $60.00 for costs.
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Allen v. Colvin, 2014 WL 6901870 at *3 (E.D. Cal. 2014); Knyazhina v. Colvin, 2014 WL

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5324302 at *3 (E.D. Cal. 2014); Louis v. Astrue, 2012 WL 92884 at *7 (E.D. Cal. 2012);

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Burnham v. Astrue, 2011 WL 6000265 at *2 (E.D. Cal. 2011); and Calderon v. Astrue, 2010 WL

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4295583 at *8 (E.D. Cal. 2010). Here, plaintiff assigned her right to EAJA fees to her attorney.

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ECF No. 22-3. Accordingly, should plaintiff not have a debt that is subject to offset, the award of

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fees may be paid directly to counsel.

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IV.

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Conclusion
Based on the foregoing, the court finds that the plaintiff’s counsel reasonably spent 29.2

hours litigating the merits of this case and his paralegal reasonably spent 3.3 hours. Furthermore,

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counsel reasonably spent 5.7 hours reviewing defendant’s opposition to the fee motion and

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preparing a reply brief. See Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998) (under the EAJA,

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reasonable time spent litigating fees is compensable). Accordingly, the court finds that counsel

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reasonably expended 34.9 hours, at a rate of $190.06 per hour,3 litigating this case, plaintiff’s

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paralegal reasonably spent 3.3 hours at $125, and plaintiff incurred $60.00 in costs.

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for attorney’s fees (ECF No. 22) is granted in part;

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2. Plaintiff is awarded attorney’s fees under the EAJA in the amount of $7,045.59, plus

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$60.00 for costs, for a total award of $7,105.59;

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3. Pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), any payment shall be made payable

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to plaintiff and delivered to plaintiff’s counsel, unless plaintiff does not owe a federal debt. If the

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United States Department of the Treasury determines that plaintiff does not owe a federal debt,

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In his reply, plaintiff requests an hourly rate of $190.28 for work performed in
reviewing and responding to defendant’s opposition to his fee motion, rather than the $190.06
hourly rate requested for all other work performed. Plaintiff provides no explanation for his
divergence from his original requested rate, which he sought for legal work performed only a few
months prior to submitting his reply brief. Accordingly, the court will award the $190.06 rate
requested in plaintiff’s original fee motion.
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the government shall accept plaintiff’s assignment of EAJA fees and pay fees directly to

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plaintiff’s counsel.

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DATED: October 2, 2017.

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