Michelle De Ann Cox v. Carolyn W. Colvin
Filing
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ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEYS FEES by Judge William Alsup [granting in part and denying in part 23 Motion for Attorney Fees]. (whasec, COURT STAFF) (Filed on 8/6/2018)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MICHELLE DE ANN COX,
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For the Northern District of California
United States District Court
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Plaintiff,
No. C 16-07183 WHA
v.
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NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing
duties and functions not reserved to the
Commissioner of Social Security,
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Defendant.
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ORDER GRANTING IN PART
AND DENYING IN PART
PLAINTIFF’S MOTION
FOR ATTORNEY’S FEES
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INTRODUCTION
In this social security appeal, plaintiff requests the award of attorney’s fees and costs
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under the Equal Access to Justice Act, 28 U.S.C Section 2341(a) and (d). Plaintiff requests any
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award be paid directly to her attorney. For the below listed reasons, plaintiff’s request is
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GRANTED IN PART and DENIED IN PART.
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STATEMENT
Plaintiff Michelle De Ann Cox previously applied for disability benefits and was denied
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by an ALJ. Plaintiff appealed her decision to district court in 2015 and Magistrate Judge
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Jacqueline Scott Corley remanded plaintiff’s case, finding that the ALJ had improperly
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discounted the opinions of medical professionals cited by plaintiff. On remand, a different
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ALJ evaluated the medical evidence and almost entirely adopted the analysis of the original
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ALJ, including the errors indicated by Judge Corley. Plaintiff again appealed the second ALJ
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decision and a prior order remanded the decision due to its failure to properly weigh the medical
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evidence — the undersigned judge thereby granted in part plaintiff’s motion for summary
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judgment. Plaintiff now applies for $13,404 in attorney’s fees under the Equal Access to Justice
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Act (EAJA) and requests that the fees be paid directly to her attorney to compensate both the
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attorney and his law clerk. Defendant failed to timely respond to plaintiff’s motion. After
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being ordered to show cause, defendant ultimately filed a response that disputed only the
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reasonableness of plaintiff’s requested award (Dkt. Nos. 1, 21, 23, 26–27).
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ANALYSIS
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For the Northern District of California
United States District Court
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PAYMENT OF ATTORNEY’S FEES.
Pursuant to the EAJA, a party can receive attorney’s fees if (1) a party “prevails” in a
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civil action and (2) the government’s position in the action, including in the underlying
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administrative proceedings, is not “substantially justified.” 28 U.S.C 2 § 412(d)(1)(A);
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Yespovich v. Colvin, 166 F. Supp. 3d 1000, 1002 (N.D. Cal. 2015). Here, plaintiff is entitled
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to attorney’s fees.
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First, a party that obtains a reversal and remand in a social security benefits case is a
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prevailing party under the EAJA. Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001).
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Given that plaintiff’s benefits appeal was reversed and remanded, plaintiff is a prevailing party
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for the purposes of the EAJA.
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Second, plaintiff contends that the Deputy Commissioner’s position was not
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substantially justified, as evidenced by the two reversals and remands of the Deputy
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Commissioner’s analysis. No special circumstances have been alleged that would render unjust
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an award of attorney’s fees to plaintiff. § 2412(d)(1)(A). The Government bears the burden to
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show that its position was substantially justified. Meier v. Colvin, 727 F.3d 867, 870 (9th Cir.
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2013). The Deputy Commissioner does not dispute that her position fell short of substantially
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justified. Further, a prior order found that on remand, the ALJ’s rejection of plaintiff’s treating
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doctor’s opinion was not justified by the requisite “clear and convincing reasoning supported by
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substantial evidence.” See Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th. Cir. 2008).
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A finding that an agency’s decision lacked substantial evidence is a strong indication that the
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position of the United State was unjustified. Meier, 727 F.3d at 872 (quoting Thangaraja v.
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Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)). This order agrees with both parties that plaintiff
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is entitled to attorney’s fees.
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REASONABLENESS OF FEES AND EXPENSES.
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A plaintiff bears the burden of establishing the reasonableness of the requested fee
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award under the EAJA. A plaintiff must thereby “document the appropriate hours spent in
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litigation by submitting evidence in support of those hours worked.” Gates v. Deukmejian, 987
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F.2d 1392, 1397 (9th Cir.1992). The appropriate number of the hours expended includes hours
“reasonably expended in pursuit of the ultimate result achieved, in the same manner that an
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For the Northern District of California
United States District Court
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attorney traditionally is compensated by a fee-paying client for all time reasonably expended on
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a matter,” Hensley v. Eckerhart, 461 U.S. 424, 431 (1983), and thus does not include hours
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that are “excessive or duplicative,” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135
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(9th Cir. 2012). It follows that fee-shifting does not extend to effort expended on issues not
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actually adjudicated, Hardisty v. Astrue, 592 F.3d 1072, 1077 (9th. Cir. 2010), though courts
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should generally defer to the judgment of the winning attorney to determine the appropriate
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fee award under the EAJA, Costa, 690 F.3d at 1136.
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The Deputy Commissioner correctly indicates that in the instant case, not all of
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plaintiff’s arguments were adjudicated, as explained below. Our court of appeals mandates
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that no fees should be awarded for time spent preparing non-adjudicated issues. Hardisty,
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592 F.3d at 1077. Accordingly, the full fee award requested cannot reasonably be awarded.
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If reducing a fee award, a district court must offer a clear explanation. Moreno v. City of
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Sacramento, 534 F.3d 1106, 1113 (9th Cir. 2008). This order concludes that plaintiff should be
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awarded $9,500.33 and will now explain why this figure is appropriate.
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DESCRIPTION OF WORK
HOURS
GOVERNMENT’S
OBJECTIONS
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DATE
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06/30/2017
Start drafting law of case.
1.00
Not all legal
arguments were
adjudicated.
07/01/2017
More draft law of case; final edit;
email Mr. Weems.
4.80
Not all legal
arguments were
adjudicated.
07/08/2017
More draft of summary judgment;
compare prior litigation stance.
1.00
Not all legal
arguments were
adjudicated.
07/09/2017
More draft of summary judgment.
2.00
Not all legal
arguments were
adjudicated.
07/12/2017
More draft motion of summary
judgment re: arg #3. Westlaw
research and finalize; e-mail
Mr. Weems to review.
8.00
Not all legal
arguments were
adjudicated.
09/01/2017
Draft motion for summary judgment
section dealing with the demand for
payment or remand for further
proceedings, specifically application of
credited-as-true rule and propriety of
remand for payments based on B
criteria of multiple listings.
3.70
Not all legal
arguments were
adjudicated.
09/05/2017
Review and revise motion draft
discussion of credibility assessment
issues.
4.10
Not all legal
arguments were
adjudicated.
09/09/2017
Review and revise motion further
development of step three issues;
further development of credibility
issues.
4.00
Not all legal
arguments were
adjudicated.
09/10/2017
Review and revise motion for
summary judgment, update
introduction and fact discussions;
re-examination of AR annotations
re underdeveloped arguments.
2.80
Not all legal
arguments were
adjudicated.
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For the Northern District of California
United States District Court
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09/11/2017
Review and revise motion for
summary judgment; drafting
re vocational expert; review AR
re same.
1.70
Not all legal
arguments were
adjudicated.
09/16/2017
Review and revise motion for
summary judgment.
5.00
Not all legal
arguments were
adjudicated.
09/18/2017
Continued revision of brief, rework
and streamline facts, arguments
and discussion.
4.20
Not all legal
arguments were
adjudicated.
09/25/2017
Revise and streamline brief.
3.40
Not all legal
arguments were
adjudicated.
09/26/2017
Revise and streamline brief;
finalize same.
3.30
Not all legal
arguments were
adjudicated.
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DESCRIPTION OF WORK
HOURS
GOVERNMENT’S
OBJECTIONS
DATE
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For the Northern District of California
United States District Court
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In the above listed hours, plaintiff’s counsel billed for time spent drafting the motion for
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summary judgment, which contained several pages of material never adjudicated, and time
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spent researching and drafting specific portions of the motion which were never adjudicated.
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Six pages of plaintiff’s 25-page brief were devoted to material not considered in the second
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remand for further proceedings. Accordingly, 24 percent of drafting this motion for summary
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judgment should not be compensated and work on discrete non-adjudicated issues should be
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entirely uncompensated. The order granting summary judgment, however, adjudicated the
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briefed issue of improper weighing of medical evidence and relied upon case background,
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which together constituted the majority of plaintiff’s brief. The compensation for the work
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performed on June 30 and July 1, 8, and 9 has accordingly been reduced by 24 percent, as has
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the work performed on September 10, 16, 18, 25, and 26. The work on July 12 and September
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5 and 9 cannot be compensated. Plaintiff may be compensated for half the work performed on
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September 11. Plaintiff may thus be awarded $9,500.33 in attorney’s fees.
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The Deputy Commissioner argues that plaintiff’s fee award should be half of what
plaintiff requests, or $6,702. The fee award, she posits, should be further reduced given
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plaintiff’s counsel’s expertise and due to the time customarily invested in litigating social
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security benefits appeals. When awarding fees under the EAJA, not only should courts defer
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to the winning counsel’s assertion of the proper fee award, but courts cannot impose a de facto
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limit on fee awards based on the time usually spent litigating “routine” social security cases.
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See Costa, 690 F.3d at 1136. Defendant’s arguments are thus not persuasive in further reducing
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the fee award.
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3.
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A plain reading of the Anti-Assignment Act, which generally forbids an assignment of
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DIRECT PAYMENT TO ATTORNEY.
the right to be paid directly from the United States Treasury, mandates that an interest in a case
cannot be assigned unless the requirements for the assignment enumerated in the Act are met.
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For the Northern District of California
United States District Court
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See United States v. Kim, 806 F.3d 1161, 1165–69 (9th Cir. 2015). Alternatively, the
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Government can waive the requirements of the Act. United States v. $186,416 in United States
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Currency, 722 F.3d 1173, 1176 (9th. Cir. 2013). The attorney, however, has no statutory right
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to the direct payment of the attorney’s fee award under the EAJA. Parties can contract for
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such a direct assignment, but the Government must either waive the requirements of the
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Anti-Assignment Act or the assignment must comport with the Act in order to effectuate
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direct payment to the attorney. Further, EAJA fees are subject to offset if the prevailing party
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owes a government debt. Astrue v. Ratliff, 560 U.S. 586, 591–97 (2010).
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Here, plaintiff’s counsel has submitted a fee agreement that indicates plaintiff had
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assigned any attorney’s fee award under the EAJA to counsel (Dkt. No. 24, Exh. 1). There is no
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information on whether plaintiff owes a pre-existing debt to the government. Accordingly, this
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order holds EAJA fees shall be paid directly to plaintiff’s counsel.
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CONCLUSION
For the reasons above, plaintiff’s motion for attorney’s fees is GRANTED IN PART and
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DENIED IN PART. Plaintiff is entitled to recover reasonable attorney’s fees in the amount of
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$9,500.33, to be paid directly to plaintiff’s counsel. The August 16 hearing is thereby
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VACATED.
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IT IS SO ORDERED.
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Dated: August 6, 2018.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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For the Northern District of California
United States District Court
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