Costa v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Deborah Barnes on 10/4/2017 GRANTING 21 Motion for Attorney Fees. Plaintiff is awarded $4,534.84 in attorney fees under 28 U.S.C. § 2412(d). (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CINDI COSTA,

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Plaintiff,

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No. 2:15-cv-0603 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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This matter is before the court on plaintiff’s fully briefed motion for attorney’s fees

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pursuant to the Equal Access to Justice Act (“EAJA”).1
Plaintiff brought this action seeking judicial review of a final administrative decision

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denying applications for Disability Insurance Benefits under Title II of the Social Security Act

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(“the Act”) and for Supplemental Security Income under Title XVI of the Act. On January 11,

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2017, following the filing of a motion for summary judgment by plaintiff and a cross-motion for

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summary judgment by defendant, the court granted in part plaintiff’s motion, reversed the

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decision of the Commissioner, and remanded this action for further proceedings. (ECF No. 19.)

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 6 & 8.)
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On April 4, 2017, plaintiff filed the pending motion for attorney’s fees. (ECF No. 21.)

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On April 19, 2017, defendant filed an opposition to plaintiff’s motion. (ECF No. 22.) Plaintiff

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filed a reply on June 22, 2017. (ECF No. 23.)

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STANDARDS

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The EAJA provides that “a court shall award to a prevailing party . . . fees and other

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expenses . . . incurred by that party in any civil action . . . brought by or against the United States

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

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

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Barnhart, 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was

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substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v.

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Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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A “party” under the EAJA is defined as including “an individual whose net worth did not

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exceed $2,000,000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The

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term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A).

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“The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the

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prevailing party to the extent that the party ‘unduly and unreasonably protracted’ the final

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resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§

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2412(d)(1)(C) & 2412(d)(2)(D)).

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A party who obtains a remand in a Social Security case is a prevailing party for purposes

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of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has

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ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence

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four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.”). “An

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applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the

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denial of her benefits is reversed and remanded regardless of whether disability benefits

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ultimately are awarded.” Gutierrez, 274 F.3d at 1257.

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ANALYSIS
Here, the court finds—and defendant does not dispute—that plaintiff is the prevailing
party, that plaintiff did not unduly delay this litigation, and that plaintiff’s net worth did not
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exceed two million dollars when this action was filed. (ECF No. 2.) Defendant argues, however,

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that the government’s position was substantially justified. (Def.’s Opp.’n (ECF No. 22) at 3-10.)

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A.

Substantial Justification

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“Substantial justification means ‘justified in substance or in the main—that is, justified to

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a degree that could satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir.

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2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the

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government’s position must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at

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870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United

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States includes both the government’s litigation position and the underlying agency action.’”

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Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also

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Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the

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government’s decision to defend on appeal the procedural errors committed by the ALJ was

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substantially justified”). “In determining whether a party is eligible for fees under EAJA, the

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district court must determine whether the government’s position regarding the specific issue on

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which the district court based its remand was ‘substantially justified’—not whether the ALJ

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would ultimately deny disability benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir.

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2017).

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Here, the court found that plaintiff was entitled to summary judgment on two claims of

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error: (1) conflict between the Vocational Expert’s (“VE”) testimony and the information

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contained in the Dictionary of Occupational Titles (“DOT”); and (2) an incomplete residual

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functional capacity determination. (ECF No. 19.) With respect to the incomplete residual

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functional capacity determination, defendant’s decision to defend was substantially justified.

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In this regard, as defendant’s argument explains, in finding that the Administrative Law

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Judge’s (“ALJ”) residual functional capacity determination was incomplete, the court relied on

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the interpretation of Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), found in Brink v.

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Commissioner of Social Sec. Admin., 343 Fed. Appx. 211 (9th Cir. 2009). (ECF No. 19 at 7.)

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“While Brink . . . represent one line of interpretation of Stubbs-Danielson, there is another line of

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[unpublished] cases consistent with the government’s position in this case.” (Def.’s Opp.’n (ECF
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No. 22) at 72) (citing cases). “If the question of law is unresolved and of unclear resolution, then

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the government’s litigation of the issue is reasonable and substantially justified.” Kali v. Bowen,

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854 F.2d 329, 330-31 (9th Cir. 1988).

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Defendant, however, was not substantially justified with respect to the issue of the conflict

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between the VE’s testimony and the DOT. In this regard, the court’s January 11, 2017 order

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found that there was a conflict between the VE’s testimony that a person limited to performing

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simple, repetitive tasks could perform jobs that required Level 3 Reasoning. (ECF No. 19 at 5-6.)

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The court’s decision was supported by citations to, in part, Zavalin v. Colvin, 778 F.3d 842 (9th

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Cir. 2015) and Rounds v. Commissioner of Social Sec. Admin., 807 F.3d 996 (9th Cir. 2015).

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In Zavalin, the Ninth Circuit held “that there is an apparent conflict between . . . limitation

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to simple, routine, or repetitive tasks, on the one hand, and the demands of Level 3 Reasoning, on

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the other hand.” 778 F.3d at 843-44. In Rounds, the Ninth Circuit held that there was “an

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apparent conflict between . . . one-and two-step tasks, and the demands of Level Two reasoning,

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which requires a person to apply commonsense understanding to carry out detailed but

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uninvolved written or oral instructions.” 807 F.3d at 1003 (quotation omitted).

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The Ninth Circuit issued Zavalin on February 20, 2015, and Rounds on August 4, 2015.

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As cited above, both of those decisions were published opinions constituting controlling

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authority. Moreover, on August 25, 2015, the Ninth Circuit issued an unpublished decision

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holding that “[t]he addition of the restriction . . . to ‘simple, 1-2 step work’ reinforces the

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conclusion compelled by Rounds that [plaintiff’s] RFC is in apparent conflict with Reasoning

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Level 2.” Tester v. Colvin, 624 Fed. Appx. 485, 488 (9th Cir. 2015).

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In determining whether defendant was substantially justified, we “focus on two questions:

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

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whether the government was substantially justified in defending the validity of the action in

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court.” Gutierrez, 274 F.3d at 1259 (quoting Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988))

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(internal quotation marks omitted).

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Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
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Here, defendant’s answer was filed on November 9, 2015, and defendant’s motion for

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summary judgment was filed on January 19, 2016. (ECF Nos. 12, 16.) In this regard,

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defendant’s filings occurred after the Ninth Circuit issued the opinions in Zavalin, Rounds, and

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Tester. Accordingly, the court finds that defendant’s decision to defend on appeal was not

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substantially justified. Cf. Allen-Howard v. Commissioner Social Sec. Admin., 615 Fed. Appx.

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402, 403 (9th Cir. 2015) (“The Commissioner’s litigation position in the district court was also

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substantially justified. As noted, there was no controlling authority on the question raised in

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Allen-Howard’s appeal at the time the Commissioner filed its briefing.”).

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B.

Plaintiff’s Fee Request
The EAJA expressly provides for an award of “reasonable” attorney fees. 28 U.S.C. §

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2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since

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1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost

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of living.3 See 28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir.

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2001); Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998). Determining a reasonable fee

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“‘requires more inquiry by a district court than finding the product of reasonable hours times a

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reasonable rate.’” Atkins, 154 F.3d at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434

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(1983) (internal citations omitted)). The district court must consider “‘the relationship between

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the amount of the fee awarded and the results obtained.’” Id. at 989 (quoting Hensley, 461 U.S.

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at 437).

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Here, after drafting a thorough motion for summary judgment, and opposition to

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defendant’s motion for summary judgment, plaintiff successfully obtained a remand for further

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proceedings. Including the time spent on briefing the opposed EAJA motion, plaintiff’s counsel

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expended 23.7 hours of attorney time on this matter. (Pl.’s Mot. (ECF No. 21) at 8-10; Pl.’s

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Reply (ECF No. 23) at 6.) The court finds the amount of hours expended to be reasonable,

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In accordance with the decision in Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir.
2005), and Ninth Circuit Rule 39-1.6, the Ninth Circuit Court of Appeals maintains a list of the
statutory maximum hourly rates authorized by the EAJA, as adjusted annually. The rates may be
found on the Court’s website. See http://www.ca9.uscourts.gov. Here, plaintiff’s requested
attorney rates are equal to the statutory maximum rates established by the Ninth Circuit.
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especially when compared to the time devoted to similar tasks by counsel in like social security

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appeals coming before this court.4 See Stamper v. Colvin, No. 2:12-cv-0192 AC, 2013 WL

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6839691, at *2 (E.D. Cal. Dec. 23, 2013) (finding 51 hours to be a reasonable amount of time);

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Boulanger v. Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19,

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2011) (finding 58 hours to be a reasonable amount of time); Watkins v. Astrue, No. CIV S-06-

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1895 DAD, 2011 WL 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62 hours to be a

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reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, at *5

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(E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be a reasonable amount of time); see also Costa

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v. Commissioner of Social Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012) (“District courts

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may not apply de facto caps limiting the number of hours attorneys can reasonably expend on

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‘routine’ social security cases.”). See generally Moreno v. City of Sacramento, 534 F.3d 1106,

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1112 (9th Cir. 2008) (“By and large, the court should defer to the winning lawyer’s professional

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judgment as to how much time he was required to spend on the case; after all, he won, and might

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not have, had he been more of a slacker.”).

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Accordingly, after carefully reviewing the record and the pending motion, the court

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declines to conduct a line-by-line analysis of counsel’s billing entries. See, e.g., Stewart v.

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Sullivan, 810 F. Supp. 1102, 1107 (D. Haw. 1993); Knowles v. Colvin, Case No. 1:14-cv-1657-

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SKO, 2016 WL 3407594, at *3 (E.D. Cal. June 20, 2016); Duran v. Colvin, No. 2:11-cv-2978

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DAD, 2013 WL 5673415, at *2 (E.D. Cal. Oct. 17, 2013); Vallejo v. Astrue, No. 2:09-cv-03088

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KJN, 2011 WL 4383636, at *4 (E.D. Cal. Sept. 20, 2011); Destefano v. Astrue, No. 05-CV-3534,

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2008 WL 623197, *4 (E.D. N.Y. Mar. 4, 2008).

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C.

Assignment of Fee Award

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Defendant asserts that “[s]hould the Court award fees, any fees awarded must be paid

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directly to Plaintiff.” (Def.’s Opp.’n (ECF No. 22) at 10.) Defendant is correct. An attorney fee

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award under the EAJA is payable to the litigant and is therefore subject to a government offset to

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satisfy any pre-existing debt owed to the United States by the claimant. Astrue v. Ratliff, 560

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U.S. 586, 592-93 (2010). Subsequent to the decision in Ratliff, some courts have ordered

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Defendant has not challenged the amount of hours or rate sought by plaintiff.
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payment of the award of EAJA fees directly to plaintiff’s counsel pursuant to plaintiff’s

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assignment of EAJA fees, provided that the plaintiff has no debt that requires offset. See

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Blackwell v. Astrue, No. CIV 08-1454 EFB, 2011 WL 1077765, at *5 (E.D. Cal. Mar. 21, 2011);

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Dorrell v. Astrue, No. CIV 09-0112 EFB, 2011 WL 976484, at *2-3 (E.D. Cal. Mar. 17, 2011);

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Calderon v. Astrue, No. 1:08-cv-01015 GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 22, 2010);

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Castaneda v. Astrue, No. EDCV 09-1850-OP, 2010 WL 2850778, at *3 (C.D. Cal. July 20,

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2010). Similarly, in recently submitted stipulations and proposed orders for the award of attorney

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fees under the EAJA, the parties have stipulated that, if plaintiff does not owe a federal debt, the

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government will consider the plaintiff’s assignment of EAJA fees and expenses to plaintiff’s

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attorney and shall honor the assignment by making the fees and expenses payable directly to

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counsel.
Here, however, plaintiff has not requested that the attorney’s fees be made payable to

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plaintiff’s counsel. Nor has plaintiff provided evidence of an assignment of plaintiff’s attorney

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fees to plaintiff’s counsel. The court, therefore, will not incorporate such a provision into this

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order.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for attorney fees under the Equal Access to Justice Act (ECF No. 21)

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is granted; and
2. Plaintiff is awarded $4,534.84 in attorney fees under 28 U.S.C. § 2412(d).
Dated: October 4, 2017

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DLB:6
DB\orders\orders.soc sec\costa0603.eaja.ord

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