Barrino v. Commissioner of Social Security

Filing 24

ORDER granting 23 Motion for Attorney Fees signed by Magistrate Judge Deborah Barnes on 10/11/17. (Kaminski, H)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHARON BARRINO, 12 Plaintiff, 13 14 15 No. 2:15-cv-1841 DB v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 This matter is before the court on plaintiff’s unopposed motion for attorney’s fees 18 19 pursuant to the Equal Access to Justice Act (“EAJA”).1 Plaintiff brought this action seeking judicial review of a final administrative decision 20 21 denying her application for Disability Insurance Benefits under Title II of the Social Security Act. 22 On March 14, 2017, following the filing of a motion for summary judgment by plaintiff and a 23 cross-motion for summary judgment by defendant, the court granted plaintiff’s motion, reversed 24 the decision of the Commissioner, and remanded this action for further proceedings. (ECF No. 25 21.) 26 //// 27 28 1 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.) 1 1 2 On June 11, 2017, plaintiff filed the pending motion for attorney’s fees. (ECF No. 23.) Defendant has not filed an opposition to plaintiff’s motion. 3 STANDARDS 4 The EAJA provides that “a court shall award to a prevailing party . . . fees and other 5 expenses . . . incurred by that party in any civil action . . . brought by or against the United States 6 . . . unless the court finds that the position of the United States was substantially justified or that 7 special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gisbrecht v. 8 Barnhart, 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was 9 substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v. 10 11 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). A “party” under the EAJA is defined as including “an individual whose net worth did not 12 exceed $2,000,000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The 13 term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). 14 “The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the 15 prevailing party to the extent that the party ‘unduly and unreasonably protracted’ the final 16 resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 17 2412(d)(1)(C) & 2412(d)(2)(D)). 18 A party who obtains a remand in a Social Security case is a prevailing party for purposes 19 of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has 20 ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence 21 four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.”). “An 22 applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the 23 denial of her benefits is reversed and remanded regardless of whether disability benefits 24 ultimately are awarded.” Gutierrez, 274 F.3d at 1257. 25 26 ANALYSIS Here, the court finds that plaintiff is the prevailing party, that plaintiff did not unduly 27 delay this litigation, and plaintiff’s net worth did not exceed two million dollars when this action 28 was filed. (ECF No. 2.) And, the position of the United States was not substantially justified. 2 1 A. 2 “Substantial justification means ‘justified in substance or in the main—that is, justified to 3 a degree that could satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 4 2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the 5 government’s position must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 6 870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United 7 States includes both the government’s litigation position and the underlying agency action.’” 8 Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also 9 Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the 10 government’s decision to defend on appeal the procedural errors committed by the ALJ was 11 substantially justified”). “In determining whether a party is eligible for fees under EAJA, the 12 district court must determine whether the government’s position regarding the specific issue on 13 which the district court based its remand was ‘substantially justified’—not whether the ALJ 14 would ultimately deny disability benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 15 2017). Substantial Justification 16 As articulated in the March 14, 2017 order, the Administrative Law Judge (“ALJ”) 17 improperly rejected three medical opinions, failed to offer specific, clear, and convincing reasons 18 for rejecting plaintiff’s testimony, and failed to offer a germane reason for discounting the 19 testimony of plaintiff’s husband. (ECF No. 21.) In this regard, the ALJ’s decision did not have a 20 reasonable basis in both law and fact. Moreover, the government has offered no argument to show 21 that its position was substantial justified. Accordingly, the court cannot find that the 22 government’s position was substantially justified. Plaintiff’s Fee Request 23 B. 24 The EAJA expressly provides for an award of “reasonable” attorney fees. 28 U.S.C. § 25 2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since 26 1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost 27 28 3 1 of living.2 See 28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir. 2 2001); Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998). Determining a reasonable fee 3 “‘requires more inquiry by a district court than finding the product of reasonable hours times a 4 reasonable rate.’” Atkins, 154 F.3d at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 5 (1983) (internal citations omitted)). The district court must consider “‘the relationship between 6 the amount of the fee awarded and the results obtained.’” Id. at 989 (quoting Hensley, 461 U.S. 7 at 437). 8 Here, after drafting a thorough motion for summary judgment, and opposition to 9 defendant’s motion for summary judgment, plaintiff successfully obtained a remand for further 10 proceedings. Including the time spent on briefing the EAJA motion, plaintiff’s motion seeks 11 compensation for 54.7 hours of attorney time. (ECF No. 23 at 3.) The court finds the amount of 12 hours expended to be reasonable, especially when compared to the time devoted to similar tasks 13 by counsel in like social security appeals coming before this court. See Stamper v. Colvin, No. 14 2:12-cv-0192 AC, 2013 WL 6839691, at *2 (E.D. Cal. Dec. 23, 2013) (finding 51 hours to be a 15 reasonable amount of time); Boulanger v. Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890, 16 at *2 (E.D. Cal. Oct. 19, 2011) (finding 58 hours to be a reasonable amount of time); Watkins v. 17 Astrue, No. CIV S-06-1895 DAD, 2011 WL 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62 18 hours to be a reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 19 4383636, at *5 (E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be a reasonable amount of time); 20 see also Costa v. Commissioner of Social Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012) 21 (“District courts may not apply de facto caps limiting the number of hours attorneys can 22 reasonably expend on ‘routine’ social security cases.”). See generally Moreno v. City of 23 Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“By and large, the court should defer to the 24 winning lawyer’s professional judgment as to how much time he was required to spend on the 25 2 26 27 28 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 Here, plaintiff’s requested attorney rate is equal to, or lower than, the statutory maximum rates established by the Ninth Circuit. 4 1 case; after all, he won, and might not have, had he been more of a slacker.”). 2 Accordingly, after carefully reviewing the record and the pending motion, the court 3 declines to conduct a line-by-line analysis of counsel’s billing entries. See, e.g., Stewart v. 4 Sullivan, 810 F. Supp. 1102, 1107 (D. Haw. 1993); Knowles v. Colvin, Case No. 1:14-cv-1657- 5 SKO, 2016 WL 3407594, at *3 (E.D. Cal. June 20, 2016); Duran v. Colvin, No. 2:11-cv-2978 6 DAD, 2013 WL 5673415, at *2 (E.D. Cal. Oct. 17, 2013); Vallejo v. Astrue, No. 2:09-cv-03088 7 KJN, 2011 WL 4383636, at *4 (E.D. Cal. Sept. 20, 2011); Destefano v. Astrue, No. 05-CV-3534, 8 2008 WL 623197, *4 (E.D. N.Y. Mar. 4, 2008). 9 C. Assignment of Fee Award Plaintiff asks that the fee award be awarded to plaintiff’s counsel pursuant to plaintiff’s 10 11 fee assignment. (ECF No. 23 at 6.) However, an attorney fee award under the EAJA is payable 12 to the litigant and is therefore subject to a government offset to satisfy any pre-existing debt owed 13 to the United States by the claimant. Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010). 14 Subsequent to the decision in Ratliff, some courts have ordered payment of the award of 15 EAJA fees directly to plaintiff’s counsel pursuant to plaintiff’s assignment of EAJA fees, 16 provided that the plaintiff has no debt that requires offset. See Blackwell v. Astrue, No. CIV 08- 17 1454 EFB, 2011 WL 1077765, at *5 (E.D. Cal. Mar. 21, 2011); Dorrell v. Astrue, No. CIV 09- 18 0112 EFB, 2011 WL 976484, at *2-3 (E.D. Cal. Mar. 17, 2011); Calderon v. Astrue, No. 1:08-cv- 19 01015 GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 22, 2010); Castaneda v. Astrue, No. EDCV 20 09-1850-OP, 2010 WL 2850778, at *3 (C.D. Cal. July 20, 2010). Similarly, in recently submitted 21 stipulations and proposed orders for the award of attorney fees under the EAJA, the parties have 22 stipulated that, if plaintiff does not owe a federal debt, the government will consider the plaintiff’s 23 assignment of EAJA fees and expenses to plaintiff’s attorney and shall honor the assignment by 24 making the fees and expenses payable directly to counsel. The court will incorporate such a 25 provision in this order. 26 //// 27 //// 28 //// 5 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiff’s motion for attorney fees under the Equal Access to Justice Act (ECF No. 23) 3 is granted; 4 2. Plaintiff is awarded $10,539.60 in attorney’s fees under 28 U.S.C. § 2412(d); and 5 3. Defendant shall determine whether plaintiff’s EAJA attorney’s fees are subject to any 6 offset permitted under the United States Department of the Treasury’s Offset Program and, if the 7 fees are not subject to an offset, shall honor plaintiff’s assignment of EAJA fees and shall cause 8 the payment of fees to be made directly to plaintiff’s counsel pursuant to the assignment executed 9 by plaintiff. 10 Dated: October 11, 2017 11 12 13 14 15 16 17 18 19 20 21 22 23 DLB:6 DB\orders\orders.soc sec\barrino1841.eaja.ord 24 25 26 27 28 6

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?