Bender v. Astrue

Filing 35

Order by Magistrate Judge Donna M. Ryu granting in part and denying in part 29 Motion for Attorney Fees. (dmrlc2, COURT STAFF) (Filed on 1/12/2012)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA 8 9 No. C-10-05333-DMR ROBERT L. BENDER, ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF’S APPLICATION FOR AWARD OF ATTORNEYS’ FEES PURSUANT TO EQUAL ACCESS TO JUSTICE ACT Plaintiff(s), 11 For the Northern District of California United States District Court 10 v. 12 MICHAEL J. ASTRUE, 13 14 Defendant(s). ___________________________________/ 15 Plaintiff Robert Bender moves the court pursuant to the Equal Access to Justice Act 16 (“EAJA”), 28 U.S.C. § 2412, for an award of attorneys’ fees after securing a remand to the Social 17 Security Administration (“SSA”) in this matter on September 6, 2011. See Bender v. Astrue, No. 18 10-5333 DMR, 2011 WL 3903217 (N.D. Cal. Sept. 6, 2011) [Docket No. 25]. Defendant 19 Commissioner opposes the motion. For the reasons given below, the court grants Plaintiff’s motion 20 in part and denies it in part. 21 I. Background and Procedural History 22 Plaintiff applied for Supplemental Security Income (“SSI”) disability benefits on May 3, 23 2006. The SSA denied his application on August 28, 2006. He submitted a request for 24 reconsideration, which the SSA denied on May 15, 2007. He then appealed to an administrative law 25 judge (“ALJ”), who affirmed the denial on June 27, 2008. The Appeals Council denied Bender’s 26 request for review on August 19, 2010, leading him to file this action. [Docket No. 1.] 27 28 1 After review of both parties’ motions for summary judgment and the administrative record, 2 [see Docket Nos. 19, 23], the court granted Bender’s motion in part on November 6, 2011 and 3 remanded the case to the SSA for further proceedings. Bender, 2011 WL 3903217, at *4. In its 4 order, the court found that the ALJ had improperly evaluated the medical opinions in the 5 administrative record. The ALJ disregarded a report by a consultative examining physician and 6 based his findings on that of a non-examining physician without providing specific and legitimate 7 reasons for doing so, as required by law. Id. Plaintiff timely filed the pending application for 8 attorneys’ fees on November 18, 2011. [Docket No. 29.] 9 III. Applicable Law The EAJA provides, in relevant part, that 11 For the Northern District of California United States District Court 10 14 [e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. 15 § 2412(d)(1)(A). Thus, to obtain a fee award requires “(1) that the claimant be a ‘prevailing party’; 16 (2) that the Government’s position was not ‘substantially justified’; [and] (3) that no ‘special 17 circumstances make an award unjust.’” Comm’r v. Jean, 496 U.S. 154, 158 (1990). 12 13 18 A. Prevailing Party Status 19 The court deems a party prevailing if the party demonstrates that “(1) as a factual matter, the 20 relief sought by the lawsuit was in fact obtained as a result of having brought the action, and (2) 21 there was a legal basis for the plaintiffs’ claim.” Andrew v. Bowen, 837 F.2d 875, 877-78 (9th Cir. 22 1988) (citation omitted). In the present case, Defendant concedes (Def.’s Mem. of P. & A. in Opp’n 23 to Pl.’s Mot. for Att’y’s Fees Under the EAJA (“Def.’s Opp’n”) 2), and the court agrees, that 24 Plaintiff qualifies as a prevailing party because his suit secured a remand of the SSA’s final 25 administrative decision. See Shalala v. Schaefer, 509 U.S. 292, 296 (1993). 26 B. Substantial Justification 27 The court finds a government’s position substantially justified if the government can prove 28 that its position has “‘reasonable basis in law and fact.’” Hardisty v. Astrue, 592 F.3d 1072, 1079 2 1 (9th Cir. 2010) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); accord Yang v. Shalala, 2 22 F.3d 213, 217 (9th Cir. 19945) (citation omitted). This analysis focuses on “the particular issue 3 on which the claimant earned remand” and not on whether the government’s ultimate determination 4 was substantially justified. Hardisty, 592 F.3d at 1078 (citation omitted). Furthermore, its scope 5 must incorporate, “‘the action or failure to act by the agency upon which the civil action is based’” 6 in addition to the subsequent litigation. Id. at 1076-77 (quoting § 2412(d)(2)(D)); accord Andrew, 7 837 F.2d at 878 (citation omitted). 8 9 Defendant highlights two facts to support its contention that it took a substantially justified position in its determination that Plaintiff should not receive SSI disability benefits. First, Defendant notes that the court found in the government’s favor when analyzing most of Plaintiff’s 11 For the Northern District of California United States District Court 10 arguments. (Def.’s Opp’n 3.) Second, Defendant asserts that, “even though the Court found that the 12 ALJ erred by not properly evaluating Dr. Amelon’s [the consultative examining physician] opinion, 13 Plaintiff did not forward this argument in her [sic] Opening Motion for Summary Judgment.” 14 (Def.’s Opp’n 4.) According to Defendant, because Plaintiff did not “put [the Commissioner] on 15 notice that Dr. Amelon’s particular opinion was at issue,” the court did not need to adjudicate the 16 issue, and “it was reasonable for the Commissioner to defend the case only on issues that Plaintiff 17 actually raised.” (Def.’s Opp’n 4.) 18 Defendant is incorrect. As already stated, the court may not turn a blind eye to the 19 government’s administrative actions and evaluate only the government’s behavior during the 20 ensuing litigation, as Defendant’s focus on Plaintiff’s moving brief suggests. See Hardistry, 592 21 F.3d at 1076-77. The court instead must examine the specific issue upon which it granted remand. 22 See id. at 1078. The court remanded this action to the SSA because the government summarily 23 ignored record evidence from an examining physician and based its determination on the testimony 24 of a non-examining physician. Bender, 2011 WL 390217, at *4. Such errors unambiguously violate 25 case law, regulations, and the SSA’s internal policy interpretations. See Reddick v. Chater, 157 F.3d 26 821, 830 (9th Cir. 1995); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995); 20 C.F.R. § 27 416.927(d); SSR 96-2p, 1996 WL 374188. Under no circumstances could Defendant substantially 28 justify ignoring portions of the record and weighing evidence in a manner that did not comport with 3 1 governing law. See Lewis, 281 F.3d at 1085; Yang, 22 F.3d at 217. Because Plaintiff is a prevailing 2 party, the government’s position was not substantially justified, and no special circumstances appear 3 to make an award unjust, the court finds Bender entitled to an award of attorneys’ fees under the 4 EAJA. 5 6 IV. Attorneys’ Fees When awarding a party attorneys’ fees pursuant to the EAJA, the court must determine the 7 reasonableness of the fees sought. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). This 8 inquiry generally entails determining “the number of hours reasonably expended on the litigation 9 multiplied by a reasonable hourly rate.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)) (quotation marks omitted). The court may reduce an award if it finds that the movant has 11 For the Northern District of California United States District Court 10 provided inadequate documentation of the fees requested, that the hours spent by counsel were 12 unreasonable, or that the movant achieved “limited success” in the litigation. Id. at 1146-47 (citing 13 Hensley, 461 U.S. at 433-34, 436-37) (quotation marks omitted). 14 The Supreme Court has established a process for evaluating a party’s limited success. In 15 relevant part, the court determines “whether the plaintiff achieve[d] a level of success that makes the 16 hours reasonably expended a satisfactory basis for making a fee award.” Id. at 1147 (quoting 17 Hensley, 461 U.S. at 434) (quotations marks omitted) (brackets in original). During this inquiry, the 18 court “should focus on the significance of the overall relief obtained . . . in relationship to the hours 19 reasonably expended on the litigation. . . . Where a plaintiff has obtained excellent results, his 20 attorney should recover a fully compensatory fee. . . . A plaintiff may obtain excellent results 21 without receiving all the relief requested.” Id. (citations and quotation marks omitted). 22 Nevertheless, the Supreme Court has cautioned that on occasion the achievement of a prevailing 23 party “may say little about whether the expenditure of counsel’s time was reasonable in relation to 24 the success achieved.” Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 25 (1989) (citation and quotation marks omitted). 26 Defendant does not contest the statutorily mandated hourly rate adjusted for cost of living, 27 see § 2412(d)(2)(A); Sorenson, 239 F.3d at 1148, which Plaintiff has calculated his attorneys’ fees -- 28 $175 per hour in 2010 and $179 per hour in 2011. (See Def.’s Opp’n 5.) However, it insists that the 4 1 court should trim the hours that Plaintiff reasonably spent on the case, because “Plaintiff’s [motion 2 for summary judgment] failed to put forward the argument which served as the basis for remand,” 3 which Defendant believes rendered the briefing “almost entirely unnecessary.” (Def.’s Opp’n 5.) 4 Defendant thus asks the court to reduce the EAJA fees “to account for unnecessary briefing on 5 issues which were not adjudicated or were found in the Commissioner’s favor.” (Def.’s Opp’n 5.) 6 Plaintiff’s attorney spent 2.6 hours on the case-in-chief in 2010 and 20.8 hours in 2011. fee settlement agreement with the government and, ultimately, briefing the present motion. 9 (Weatherhead Decl. Ex. 1; Supp. Weatherhead Decl., Dec. 23, 2011.) See Love v. Reilly, 924 F.2d 10 1492, 1497 (9th Cir. 1991) (holding that “the prevailing party is automatically entitled to attorney’s 11 For the Northern District of California (Weatherhead Decl. Ex. 1, Nov. 18, 2011.) He also spent 9.0 hours in 2011 attempting to come to a 8 United States District Court 7 fees for any fee litigation once the district court has made a determination that the government’s 12 position lacks substantial justification”). Counsel worked 9.6 hours in 2011 drafting the motion for 13 summary judgment. (Weatherhead Decl. Ex. 1.) After thoroughly examining the record, the court 14 trims the hours for drafting the motion by 50 percent to 4.8 hours. Although the motion mentioned 15 the issue upon which Plaintiff secured remand -- namely the incorrect weighing of physician 16 testimony and the mistreatment of Dr. Amelon’s report -- the bulk of the motion contained 17 unmeritorious arguments. Moreover, the argument that secured Plaintiff remand did not discuss the 18 administrative error with precision or particularity. The court therefore grants Plaintiff attorneys’ 19 fees worth 2.6 hours in 2010 at a rate of $175 per hour and 25 hours in 2011 at a rate of $179 per 20 hour, for a total of $4,930. 21 V. Conclusion 22 For the reasons above, the court grants in part and denies in part Plaintiff’s Motion for 23 Attorneys’ Fees Under the EAJA. The court awards Plaintiff fees in the amount of $4,930. This fee 24 will be paid to Plaintiff’s attorney, upon verification that Plaintiff has no debt which qualifies for 25 offset against the awarded fees, pursuant to the Treasury Offset Program as discussed in Astrue v. 26 Ratliff, 130 S. Ct. 2521, 2527 (2010) (holding that EAJA awards fees to litigant, subjecting fee 27 calculation “to a federal administrative offset if the litigant has outstanding federal debts”). If 28 Plaintiff has no such debt, then the check shall be made out to Plaintiff’s attorney. The 5 1 Commissioner shall notify Plaintiff and his attorney within 21 days of this order if it contends that 2 Plaintiff has debt which qualifies for an offset against the awarded fees, as well as the basis for that 3 contention. 10 11 For the Northern District of California United States District Court ER H 9 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 R NIA FO S DONNA M. RYU na M. Ryu n UnitedJStates Do udge Magistrate Judge RT 8 I NO 7 Dated: January 12, 2012 LI 6 ERED ORD T IS SO A 5 UNIT ED IT IS SO ORDERED. RT U O 4 S DISTRICT TE C TA N F D IS T IC T O R C

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