Tobin v. Strue

Filing 35

ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEYS FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT 27 (Illston, Susan) (Filed on 7/25/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 10-02937 SI

CANDI L. TOBIN,

ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND
COSTS UNDER THE EQUAL ACCESS
TO JUSTICE ACT

Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

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Plaintiff has filed a motion for award of attorney’s fees and costs under the Equal Access to

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Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Having considered the papers submitted, the Court hereby

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GRANTS IN PART plaintiff’s motion.

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BACKGROUND

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On February 23, 2007, plaintiff Candi Tobin filed a claim for Disability Insurance Benefits under

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Title II of the Social Security Act. Administrative Record (“AR”) 84. Plaintiff sought disability

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benefits and claimed she was unable to work between October 13, 1999 and June 30, 2005 as a result

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of an alleged “nonspecific autoimmune and neurological phenomenon,” accompanied by “stress, joint

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pain, mental confusion, and muscle contractions.” Id. at 92, 111. Her diagnoses included a skin

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condition called Sweet’s Syndrome, autoimmune problems presenting lupus-like symptoms, “Fight or

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Flight” Syndrome, and an anxiety disorder, among others. Id. at 232-33, 446, 537-38. Her primary care
physician, Dr. Thomas Suard, who had treated her for more than ten years, believed that she was unable

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to work between September 1998 and June 2005. Id. at 536. In early July 2005, her rheumatologist,

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Dr. Joan Campagna, observed an “auto-immune problem [with] a combination of neurologic problems,

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as well as lupus and Sjogren’s symptoms” and fatigue. Id. at 446. However, in 1999 her treating

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physician, Dr. Jeffrey Kishiyama, found no objective basis for some of her complaints, which he found

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“unbelievable or possibly delusional.” Id. at 202-03. Plaintiff also consistently tested negative for

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classic autoimmune diseases like lupus. Id. at 227, 334.
The Social Security Administration (“SSA”) initially denied her disability claim on July 3, 2007.

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Id. at 10. SSA denied her claim again upon reconsideration on September 28, 2007. Id. Plaintiff then

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requested a hearing on October 19, 2007, and appeared before an Administrative Law Judge (“ALJ”)

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United States District Court
For the Northern District of California

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on December 11, 2008. Id. She testified along with her husband and daughter, as well as a vocational

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expert. Id. Following the hearing, the ALJ denied her claim on May 18, 2009. Id.

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After the ALJ denied her claim, plaintiff sought review from the SSA Appeals Council. With

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the assistance of counsel for the first time in the proceeding, plaintiff filed a request for review with the

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Appeals Council on September 22, 2009. Id. at 1. The Appeals Council denied her request for review

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on May 14, 2010. Id. On July 2, 2010, plaintiff filed a complaint with this Court seeking judicial

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review of the Commissioner’s final decision pursuant to 42. U.S.C. § 405(g). Both parties moved for

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summary judgment. This Court granted plaintiff’s motion for summary judgment, and denied

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defendant’s. On August 26, 2012, plaintiff filed a Motion to Alter or Amend the Judgment, to which

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defendant objected. Defendant subsequently filed its own Motion to Alter or Amend. Both parties’

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motions were denied by this Court on February 12, 2012. Plaintiff now moves for attorneys’ fees and

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costs pursuant to the EAJA.

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LEGAL STANDARD

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Under section 2412(d) of the EAJA, reasonable attorneys’ fees and costs may be awarded to the

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prevailing party in a civil action against the United States, including a proceeding for judicial review

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of an agency action. See 28 U.S.C. § 2412(d). The plaintiff is entitled to attorneys’ fees and costs

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unless the Court finds that the position of the United States was substantially justified. See id. In Pierce

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v. Underwood, the Supreme Court defined “substantially justified” as “justified in substance or in the
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main – that is, justified to a degree that could satisfy a reasonable person” or having a “reasonable basis

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both in law and fact”. Pierce v. Underwood, 487 U.S. 552, 565 (1988). When an ALJ’s decision is

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reversed on the basis of procedural errors, the question is not whether the government’s position as to

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the merits of the plaintiff’s claim was substantially justified. See Shafer v. Astrue, 518 F.3d 1067, 1071

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(9th Cir. 2008). “Rather, the relevant question is whether the government’s decision to defend on appeal

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the procedural errors committed by the ALJ was substantially justified.” Id. The language of the EAJA

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creates a presumption in favor of awarding attorneys’ fees, and therefore the burden of establishing

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substantial justification is placed with the government. United States v. 313.34 Acres of Land, More

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or Less, Situated in Jefferson County, State of Wash., 897 F.2d 1473, 1477 (9th Cir. 1989); Gutierrez

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United States District Court
For the Northern District of California

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v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). However, the government’s position need not be

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correct to be substantially justified. See Pierce v. Underwood. See 487 U.S. at 566 n.2.

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DISCUSSION
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The Government’s Decision to Defend Was Not Substantially Justified

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a.

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Plaintiff argues that the government’s position was not substantially justified because, as the

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Court concluded in its August 23, 2011 Order, the ALJ “failed to comply with agency regulations and

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established precedent . . . ” Pl. Mot., Dkt. 27 at 4. The Court agrees. In its Order, this Court found that

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the ALJ had committed multiple errors by failing to consider the full record. Ord., Dkt 17 at 6.

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Specifically, the ALJ erred by: improperly evaluating medical evidence presented by plaintiff’s treating

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doctors that related to the severity and scope of her alleged disability; discrediting, without providing

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sufficient reason, the testimony given by plaintiff and her family; and relying on a vocational expert’s

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answer to a hypothetical question, when that question failed to account for evidence in the record

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pertaining to several of plaintiff’s alleged conditions. Id. at 7-14. This Court affirmed the ALJ’s

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conclusion regarding step three because he adequately explained his finding. Id. at 14.

Cross-Motions for Summary Judgment

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In its opposition to plaintiff’s motion for attorneys’ fees, the government argues that the

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Commissioner was “substantially justified in defending the underlying action,” and proffers arguments

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as to why the Commissioner was justified in defending each of the ALJ’s rulings at issue. See generally
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Def. Opp., 2-8. However, the Ninth Circuit has held that errors in which an ALJ “fail[s] to make

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findings and weigh evidence” are “serious,” and that the government’s “defense of [these] basic and

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fundamental errors” lacks substantial justification. See Shafer, 518 F.3d 1067, 1071-72 (quoting Corbin

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v. Apfel, 149 F.3d 1051 at 1053 (9th Cir. 1998)). In the instant case, the ALJ’s errors were described

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by this Court as “failing to consider the full record,” and as such are “serious” errors as defined by the

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Ninth Circuit. Furthermore, courts have held that in following the law of the circuit, “the more clearly

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established are the governing norms, and the more clearly they dictate a result in favor of the private

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litigant, the less justified it is for the government to pursue litigation.” Mattson v. Bowen, 824 F.2d

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655(8th Cir. 1987); see also Stewart v. Sullivan, 810 F. Supp. 1102, 1104 (D. Haw. 1993) (holding that

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United States District Court
For the Northern District of California

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when the agency has failed to follow the law of the circuit, the government’s position has no reasonable

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basis in law). Therefore, the Court finds that the government was not substantially justified in defending

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the ALJ’s failure to make complete findings and weigh all germane evidence.

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For the foregoing reasons, the Court finds that plaintiff is entitled to an award of attorneys’ fees

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and costs pursuant to the EAJA, 28 U.S.C. § 2412(d), for plaintiff’s costs of suit and efforts on the cross-

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motion.

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b.

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Following this Court’s summary judgment Order, plaintiff filed a Motion to Alter Judgment on

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August 26, 2011. Defendant opposed the motion and filed its own Motion to Alter on September 9,

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2011. The Court ruled on February 1, 2012, denying both parties’ motions. Plaintiff seeks attorneys’

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fees for work on this motion. The Court declines to award attorneys’ fees related to plaintiff’s filing of

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its motion to amend. First, plaintiff is not a “prevailing party” with respect to her motion to amend

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because this Court denied the motion. Secondly, plaintiff undertook this motion on her own volition,

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rather than in response to some government action. Therefore, the government could not have assumed

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a “substantially unjustified position” as is required to obtain an award under the EAJA. The Court finds,

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however, that an award for time expended on plaintiff’s response to the government’s own subsequent

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motion to alter judgment is warranted under the EAJA.

Motion to Alter or Amend

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Reasonableness of Plaintiff’s Request for Fees

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Plaintiff requests reimbursement of $12,444.86 in attorneys’ fees and costs and supports this

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request with detailed time records from plaintiff’s attorneys. This request reflects 30 hours billed at

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the applicable statutory maximum rate for 2010 of $175.06, and 33.75 hours at the 2011/2012 rate of

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$180.59, for a total of 63.75 hours billed by Attorney Wilborn; and 3.5 hours at the 2010 rate, and .75

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hours at the 2011/2012 rate for a total of 4.25 hours billed by Attorney Linden. The Court finds that the

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work done for filing and responding to the motions for summary judgment was reasonable and is

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compensable under EAJA. As discussed above, however, the Court will not award fees for plaintiff’s

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motion to alter the judgment, but will allow time spent opposing the government’s motion to alter the

United States District Court
For the Northern District of California

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judgment.

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Therefore, the Court finds the following adjustment in attorneys’ fees appropriate: 9.25 hours

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at the 2011 rate of $180.59 shall be deducted from the gross hours reported by plaintiff’s counsel, for

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a revised total of 58.75 hours at the respective yearly rates, plus the Court filing fee, for a final award

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of $10,774.41.

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IT IS SO ORDERED.

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Dated: July 25, 2012

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SUSAN ILLSTON
United States District Judge

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