Cargill v. Commissioner of Social Security

Filing 31

ORDER signed by Magistrate Judge Kendall J. Newman on 7/9/2019 GRANTING 27 Motion for Attorney Fees. Plaintiff is awarded attorneys' fees under the EAJA in the total amount of $20,275.44. If the government determines that Plaintiff does not owe a federal debt that qualifies for offset, payment may be made in the name of Plaintiff's attorney. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEVE W. CARGILL,

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Plaintiff,

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No. 2:16-cv-0949-KJN

v.

ORDER ON MOTION FOR ATTORNEY
FEES UNDER THE EAJA

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff commenced this social security action on May 4, 2016. (ECF No. 1.) On August

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29, 2017, the Court granted Defendant’s cross-motion for summary judgment.1 (ECF No. 17.)

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Plaintiff appealed, and on March 6, 2019 the Ninth Circuit reversed and remanded for further

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proceedings; this Court then remanded the case to the agency and entered judgment for Plaintiff.

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(ECF Nos. 23, 25, 26.)

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Thereafter, Plaintiff filed the instant motion for attorneys’ fees. (ECF No. 27.) Defendant

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opposes, contending its position has always been “substantially justified,” and contending the fee

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amount requested is excessive; Plaintiff filed a reply. (ECF Nos. 29, 30.) After considering the

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parties’ briefing and the applicable law, the Court GRANTS Plaintiff’s motion for EAJA fees.

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This case was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15) and both parties
voluntarily consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. §
636(c). (ECF Nos. 6, 15.)
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Legal Standard

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The Equal Access to Justice Act (“EAJA”) provides for an award of fees, other expenses,

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and costs to a prevailing plaintiff in an action for judicial review of the Social Security

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Administration’s actions “unless 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)(A); see also sub. (B)

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(the prevailing, eligible party “shall also allege that the position of the United States was not

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substantially justified.”). The Supreme Court has defined “substantial justification” as:

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“justified in substance or in the main” – that is, justified to a degree that could
satisfy a reasonable person. [This standard] is no different from the “reasonable
basis in both law and fact” formulation adopted by the Ninth Circuit and the vast
majority of other Courts of Appeals that have addressed this issue.

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Pierce v. Underwood, 487 U.S. 552, 565 (1988). A position does not have to be correct to be

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substantially justified; rather, the standard is satisfied if there is a “genuine dispute.” Id. at 565

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and 566 n.2; see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). In determining the

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reasonableness of the government’s position under the ‘totality of the circumstances’ test, the

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court reviews both the underlying governmental action being defended in the litigation and the

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positions taken by the government in the litigation itself. § 2412(d)(1)(B); Gutierrez v. Barnhart,

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274 F.3d 1255, 1259 (9th Cir. 2001). The government has the burden of demonstrating that its

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position was substantially justified, but its failure to prevail does not raise a presumption that its

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position was not substantially justified. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).

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As to the amount to award, the EAJA directs that any fee must be reasonable. 28 U.S.C.

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§ 2412(d)(2)(A). In determining whether a fee is reasonable, the court considers the reasonable

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hourly rate, the hours expended, and the results obtained. See Commissioner, INS v. Jean, 496

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U.S. 154, 163 (1990); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Atkins v. Apfel, 154 F.3d

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986, 988 (9th Cir. 1998). The applicant must present “an itemized statement from any attorney or

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expert witness representing or appearing in behalf of the party stating the actual time expended

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and the rate at which fees and other expenses were computed.” § 2412(d)(1)(B). An increase in

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the statutory rate of $125 may be justified to account for increases in the cost of living. See

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Sorenson v. Mink, 239 F.3d 1140, 1148–49 (9th Cir. 2001); see also Thangaraja v. Gonzales, 428
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F.3d 870, 876-77 (9th Cir. 2005) (holding that the cost of living adjustment to the statutory cap is

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computed by multiplying the statutory cap by the consumer price index for urban consumers for

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the year in which the fees were earned, then dividing by the consumer price index figure on the

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date that the cap was imposed by Congress); Ninth Circuit Rule 39–1.6 and Notice re: EAJA rates

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(available at http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039).
EAJA fee applications are due “within thirty days of final judgment,” which is “a

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judgment that is final and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G).

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Analysis

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I.

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Substantial Justification

Plaintiff asserts he was the prevailing party, having obtained from the Ninth Circuit a

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remand for further proceedings under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer,

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509 U.S. 292, 300-02 (1993). Plaintiff asserts that Defendant’s position was not substantially

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justified, given that the ALJ committed “legal error” in failing to appropriately justify why certain

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Listings were inapplicable and why the opinion of a treating physician was discounted. Thus,

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Plaintiff maintains fees are warranted under the EAJA.

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Defendant does not dispute Plaintiff’s prevailing-party status, but contends the position of

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the Commissioner was substantially justified, making EAJA fees unwarranted. Flores, 49 F.3d at

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569. Defendant argues the ALJ did not ignore the relevant Listings or the treating physician, but

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simply failed to sufficiently articulate the rationale relied upon. Further, Defendant argues that

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the split panel at the Ninth Circuit, and this Court’s finding in favor of Defendant, is objective

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evidence that “reasonable minds” differed on the issues raised by Plaintiff in this action and on

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appeal.

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As to these arguments, the Court finds Plaintiff’s to be more persuasive. On appeal, a

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majority panel at the Ninth Circuit held the ALJ committed “legal error” in failing to articulate

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the inapplicability of certain Listings, and in failing to “expressly explain” why the treating

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physician’s opinion was discounted. See Cargill v. Berryhill, 762 F. App'x 407, 409 (9th Cir.

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2019). “The nature and scope of the ALJ's legal errors are material in determining whether the

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Commissioner's decision to defend them was substantially justified.” Sampson v. Chater, 103
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F.3d 918, 922 (9th Cir. 1996) (citing Flores, 49 F.3d at 570). As to the first issue, the Ninth

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Circuit focused on the fact that the ALJ’s treatment of the Listing was “two sentences”—one of

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which was clear error and the other a boilerplate finding. The majority commented that though

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the dissent “may be correct that the ALJ’s inference was reasonable, we are unable to so conclude

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based on a single conclusory statement.” Cargill, 762 F. App'x at 409 (citing Brown-Hunter v.

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Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[T]he agency [must] set forth the reasoning behind its

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decisions in a way that allows for meaningful review.”)). As to the discounting of the treating

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physician’s opinion, the majority panel concluded that precedent requires the ALJ to “expressly

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explain” the reasons for doing so—in order for a court to properly conduct a harmless error

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analysis. Id. at 410; see also Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (“[An]

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ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more

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than ignoring it, asserting without explanation that another medical opinion is more persuasive, or

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criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.”).

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Thus, the Ninth Circuit appears to have focused on the procedural errors made by the ALJ, in

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violation of clear precedent. Given this determination, the Court cannot say the Commissioner’s

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defense of the ALJ’s findings were substantially justified. See Kirk v. Berryhill, 244 F. Supp. 3d

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1077, 1081 (E.D. Cal. 2017) (“When the government violates its own regulations, fails to

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acknowledge settled circuit case law, or fails to adequately develop the record, its position is not

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substantially justified.”) (citing Gutierrez, 274 F.3d 1255 and Flores, 49 F.3d at 570); see also

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Mahoney v. Comm'r of Soccial Sec. Admin., 2018 WL 3603062, at *1 (E.D. Wash. June 11,

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2018) (awarding EAJA fees where the ALJ “improperly used boilerplate language in dismissing

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Plaintiff's claim for benefits and lacked clarity in its opinion.”); Layton v. Comm'r of the Soc.

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Sec. Admin., 2017 WL 5158598, at *3 (D. Ariz. Nov. 7, 2017) (awarding EAJA fees where the

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ALJ “failed to provide specific, legitimate reasons for rejecting the opinion of Plaintiff’s treating

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physician[.]”).

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Defendant’s reliance on certain EAJA fees cases, where the Ninth Circuit declined to

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reverse the district court’s denial of fees due to the lower court’s “substantial justification”

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findings, are inapposite. See Hardisty v. Astrue, 592 F.3d 1072 (9th Cir. 2010); Lewis v.
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Barnhart, 281 F.3d 1081, 1083 (9th Cir 2002); Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir.

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1991). In each of these cases, the district court found the ALJ’s position to be substantially

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justified, given the ALJ made explicit determinations as to certain evidence—which the lower

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court was able to review. As discussed above, the majority’s decision focused on the procedural

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errors committed by the ALJ (in failing to make the proper express findings on the record).

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Cargill, 762 F. App'x at 409–410. In fact, the majority panel recognized that Defendant may

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ultimately prevail, but the lack of a clear record precluded a determination on the merits. Id. at

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410. The Court also recognizes the split panel in this case, but finds this factor cannot outweigh

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the conclusive command of the majority’s opinion as to the ALJ’s procedural errors. See, e.g.,

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Aranda v. Astrue, 2011 WL 2413996, at *3 (D. Or. June 8, 2011) (awarding EAJA fees in case

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where split Ninth Circuit panel held the ALJ’s assessment of a doctor’s opinion was inadequate,

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as “the government’s position must have a reasonable basis in law and fact,” and “the fact that

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another court agreed or disagreed with the Commissioner does not establish whether the

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government's position was substantially justified.”) (citing Pierce, 487 U.S. at 569)).

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Thus, the Court finds Plaintiff eligible for an award of fees under the EAJA.

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II.

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Plaintiff asserts his request for reimbursement of 95.65 billable hours is reasonable, given

Reasonableness of the Fee Request

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counsel’s unfamiliarity with the case prior to filing the complaint with this Court, counsel’s

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review of an administrative record totaling almost a thousand pages, the complexity of the

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evidence submitted and inconsistencies of clinical reports, and the fact that this action spanned a

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three-year period that included cross–motions for summary judgment and an appeal to the Ninth

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Circuit. (See ECF No. 28-2.) Counsel’s billing statement shows the rate claimed is that

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prescribed by the Ninth Circuit’s EAJA notice pursuant to Rule 39–1.6. See Id. Finally, Plaintiff

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requests reimbursement of $2,042.99 in costs, which includes court filing fees, parking, printing,

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postage, travel and mileage. See Id. Thus, Plaintiff asserts his request for $20,433.59 is

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reasonable.

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Defendant contends some of counsel’s stated hours in the request are unreasonable.
After independently reviewing the individual time entries on the timesheets submitted by
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plaintiff’s counsel (ECF No. 28–2), the Court deducts the following time spent on purely clerical

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or secretarial tasks (such as receiving and preparing files; receiving routine case e-mails; and

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reviewing routine notices and filings, such as answers, notices of appearance, and orders granting

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pro hac vice applications): (a) 0.65 hours of various clerical time in 2017 at an hourly rate of

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$196.79; (b) 0.15 hours of clerical time in 2018 at an hourly rate of $201.60, for a total deduction

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of $158.15. As to Defendant’s other disputes, the fact that counsel billed a number of hours to

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review the record and more hours to compose Plaintiff’s briefs for the Ninth Circuit, the Court

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disagrees. Given the fact that Plaintiff obtained a favorable judgment remanding the case for

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further administrative proceedings, the Court concludes that the requested amount of fees, as

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modified above is consistent with the result obtained. See Costa v. Comm'r of Soc. Sec. Admin.,

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690 F.3d 1132, 1136 (9th Cir. 2012) (reminding that in assessing EAJA requests, a court should

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defer to counsel’s “professional judgment as to how much time he was required to spend on the

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case,” as sometimes “the vicissitudes of the litigation process” will require lawyers to duplicate

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tasks.).
Therefore, the Court will award Plaintiff EAJA attorneys’ fees in the full amount of

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$20,275.44.

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III.

Assignment of Fees

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The Court notes that Plaintiff has executed an assignment of EAJA fees to Plaintiff’s

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counsel. (ECF No. 28-1.) However, the EAJA award must be made by this Court to Plaintiff,

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and not to counsel. See Astrue v. Ratliffe, 130 S. Ct. 2521 (2010). Nevertheless, if the

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government determines that Plaintiff does not owe a federal debt that qualifies for offset, payment

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may be made in the name of Plaintiff’s attorney.

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ORDER

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Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that Plaintiff is

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awarded attorneys’ fees under the EAJA in the total amount of $20,275.44. (ECF No. 27.) If the

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government determines that Plaintiff does not owe a federal debt that qualifies for offset, payment

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may be made in the name of Plaintiff’s attorney.

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IT IS SO ORDERED.
Dated: July 9, 2019

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