Hernandez v. Commissioner of Social Security

Filing 34

ORDER granting 31 Motion for Attorney Fees, signed by Magistrate Judge Deborah Barnes on 7/7/17. Plaintiff is AWARDED $3,750 in attorney's fees. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANNABELLE HERNANDEZ,

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Plaintiff,

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No. 2:15-cv-1322 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 her applications for Disability Insurance Benefits (“DIB”) under Title II of the Social

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Security Act (“the Act”) and for Supplemental Security Income (“SSI”) under Title XVI of the

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Act. On January 9, 2017, following the filing of a motion for summary judgment by plaintiff and

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a cross-motion for summary judgment by defendant, the court granted plaintiff’s motion in part,

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reversed the decision of the Commissioner and remanded this action for further proceedings.

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(ECF No. 30.)

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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. 7 & 10.)
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On April 2, 2017, plaintiff filed this motion for attorney’s fees, seeking an award of

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$3,750. (ECF No. 31.) On April 17, 2017, defendant filed an opposition to plaintiff’s motion.

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(ECF No. 32.) Plaintiff filed a reply on May 8, 2017. (ECF No. 33.)
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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“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”).
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

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Here, the court finds that plaintiff is the prevailing party, that plaintiff did not unduly

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delay this litigation, and that plaintiff’s net worth did not exceed two million dollars when this

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action was filed. (ECF No. 4.) Defendant argues, however, that the government’s position was

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substantially justified. (ECF No. 32 at 3-9.) In this regard, defendant argues that “the ALJ’s

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findings had a reasonable basis in law and fact.” (Id. at 4.) The court finds defendant’s argument

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unpersuasive.

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As articulated in the January 9, 2017 order, the ALJ rejected the opinion of an examining

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physician for legally impermissible reasons. See generally Garrison v. Colvin, 759 F.3d 995,

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1012-13 (9th Cir. 2014) (“an ALJ errs when he rejects a medical opinion or assigns it little weight

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while doing nothing more than ignoring it, asserting without explanation that another medical

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opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a

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substantive basis for his conclusion”); Ryan v. Commissioner of Social Sec., 528 F.3d 1194,

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1199-200 (9th Cir. 2008) (“[A]n ALJ does not provide clear and convincing reasons for rejecting

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an examining physician’s opinion by questioning the credibility of the patient’s complaints where

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the doctor does not discredit those complaints and supports his ultimate opinion with his own

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observations.”); Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“This court has

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repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as

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grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from

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her credibility as to her overall disability.”); Lester v. Chater, 81 F.3d 821, 832 (9th Cir. 1995)

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(“The Secretary may not assume that doctors routinely lie in order to help their patients collect
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disability benefits.”); Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say that

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medical opinions are not supported by sufficient objective findings or are contrary to the

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preponderant conclusions mandated by the objective findings does not achieve the level of

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specificity . . . required, even when the objective factors are listed seriatim.”).

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Accordingly, the court finds that the position of the government was not substantially

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justified. 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.2 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 new hearing.

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Plaintiff’s counsel expended 22.75 hours of attorney time. (ECF No. 31 at 4.) The court finds the

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amount of attorney hours expended to be reasonable, especially when compared to the time

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devoted to similar tasks by counsel in like social security appeals coming before this court.3 See

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Stamper v. Colvin, No. 2:12-cv-0192 AC, 2013 WL 6839691, at *2 (E.D. Cal. Dec. 23, 2013)

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(finding 51 hours to be a reasonable amount of time); Boulanger v. Astrue, No. CIV S-07-0849

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DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19, 2011) (finding 58 hours to be a 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 rates
are equal to the statutory maximum rates established by the Ninth Circuit.
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Moreover, although plaintiff’s counsel expended 22.75 hours of time on this action—which
would equate to a total award $4,380.47—plaintiff is only seeking compensation in the amount of
$3,750.
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amount of time); Watkins v. Astrue, No. CIV S-06-1895 DAD, 2011 WL 4889190, at *2 (E.D.

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Cal. Oct. 13, 2011) (finding 62 hours to be a reasonable amount of time); Vallejo v. Astrue, No.

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2:09-cv-03088 KJN, 2011 WL 4383636, at *5 (E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to

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be a reasonable amount of time); see also Costa v. Commissioner of Social Sec. Admin., 690 F.3d

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1132, 1137 (9th Cir. 2012) (“District courts may not apply de facto caps limiting the number of

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hours attorneys can reasonably expend on ‘routine’ social security cases.”). See generally

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Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“By and large, the court

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should defer to the winning lawyer’s professional judgment as to how much time he was required

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to spend on the case; after all, he won, and might 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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Finally, found in a single sentence of plaintiff’s motion is a request that the attorney fees

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award “be paid to plaintiff’s attorney.” (ECF No. 31 at 1.) Defendant argues that any fee award

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must be paid directly to the plaintiff. (ECF No. 32 at 10.) Plaintiff’s reply brief disputes this

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assertion. (ECF No. 33 at 6.)

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An attorney fee award under the EAJA is payable to the litigant and is therefore subject to

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a government offset to satisfy any pre-existing debt owed to the United States by the claimant.

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Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010). Subsequent to the decision in Ratliff, some courts

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have ordered payment of the award of EAJA fees directly to plaintiff’s counsel pursuant to

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

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

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

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2011); Calderon v. Astrue, No. 1:08-cv-01015 GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 22,
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2010); Castaneda v. Astrue, No. EDCV 09-1850-OP, 2010 WL 2850778, at *3 (C.D. Cal. July

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20, 2010). Similarly, in recently submitted stipulations and proposed orders for the award of

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

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

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plaintiff’s attorney and shall honor the assignment by making the fees and expenses payable

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directly to counsel.

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Nonetheless, here, plaintiff has failed to produce any evidence of an assignment of

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

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provision into this 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. 31)

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is granted; and
2. Plaintiff is awarded $3,750 in attorney’s fees.

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Dated: July 7, 2017

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DLB:6
DB\orders\orders.soc sec\hernandez1322.eaja.ord

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