BEAL v. Colvin
Filing
35
ORDER by Judge Yvonne Gonzalez Rogers granting 31 Plaintiff's Motion for an Award of Attorney's Fees. (fs, COURT STAFF) (Filed on 9/13/2016)
1
2
3
4
UNITED STATES DISTRICT COURT
5
NORTHERN DISTRICT OF CALIFORNIA
6
7
TERESA JEAN BEAL,
Case No. 14-cv-04437-YGR
Plaintiff,
8
v.
ORDER GRANTING PLAINTIFF’S MOTION
FOR AWARD OF ATTORNEY'S FEES
9
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
11
United States District Court
Northern District of California
10
Defendant.
Re: Dkt. No. 31
12
On June 23, 2016, plaintiff Teresa Jean Beal filed a motion for an award of attorney’s fees
13
pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (“EAJA”). (Dkt. No. 31.)
14
Plaintiff requests the Court award her reasonable attorney’s fees in the amount of $6,528.34 and
15
costs in the amount of $451.33. The Commissioner opposes. Having carefully considered the
16
papers submitted and the record in this case, the Court GRANTS plaintiff’s motion.
17
I.
BACKGROUND
18
In 2010, plaintiff filed applications for disability insurance benefits claiming that she had
19
been disabled since April 15, 2008. In a decision dated September 21, 2011, the Administrative
20
Law Judge (“ALJ”) found that plaintiff was not disabled. On November 14, 2011, plaintiff
21
requested review of the ALJ’s decision with the Appeals Council (“AC”). The AC denied her
22
request on July 31, 2013. Plaintiff submitted additional documentation to the AC requesting that
23
her file be reopened, and on August 27, 2014, the AC informed plaintiff that it found no grounds
24
upon which to reopen the file.1 Plaintiff then sought review of the ALJ’s decision in this Court.
25
On November 10, 2015, this Court issued an order granting in part plaintiff’s motion for
26
27
28
1
Because the AC denied review, the ALJ’s decision became the final decision of the
Commissioner of Social Security. See Meier v. Colvin, 727 F.3d 867, 871 (9th Cir. 2013).
1
summary judgment and remanding the case to the ALJ to address properly the ALJ’s (i) failure to
2
accept or reject explicitly the opinions of Dr. Wang, plaintiff’s treating cardiologist and (ii)
3
decision to discount the opinions of Dr. Sanchez, who conducted a psychological consultative
4
examination. (Dkt. No. 21 at 10, 12.)
Dr. Wang opined that plaintiff’s cardiac symptoms—including fatigue, weakness,
5
6
dizziness, and shortness of breath—frequently interfered with her attention and concentration. (Id.
7
at 10.) The ALJ did not cite to or directly address Dr. Wang’s opinions, and thus, the Court found
8
that it could not “determine whether the ALJ properly rejected Dr. Wang’s opinions, improperly
9
rejected them without a specific, legitimate basis, or overlooked them entirely.” (Id.) The Court
explained that Dr. Wang’s opinions were directly relevant to the ALJ’s “fact-specific overall
11
United States District Court
Northern District of California
10
functionality assessment,” and therefore, the Court could not ascertain whether any error with
12
respect to Dr. Wang’s opinions was harmless. (Id.)
Dr. Sanchez opined that plaintiff would have had difficulty being socially appropriate or
13
14
tolerating work stress due to her preoccupation with pain. (Id. at 12.) The ALJ gave “some
15
weight, but not full weight” to the opinion explaining that there was no evidence suggesting that
16
plaintiff was unable to tolerate work stress or interact appropriately with others. (Id.) The Court
17
found that it could not “definitively ascertain the complete basis for the ALJ’s decision to discount
18
Dr. Sanchez’s opinion.” (Id.)
Based on the deficiencies in the ALJ’s order relative to Dr. Wang and Dr. Sanchez, the
19
20
Court granted in part plaintiff’s motion for summary judgment and remanded to the ALJ for
21
further proceedings.
22
23
II.
DISCUSSION
In any action brought by or against the United States, the EAJA provides that “a court shall
24
award to a prevailing party other than the United States fees and other expenses . . . unless the
25
court finds that the position of the United States was substantially justified or that special
26
circumstances make an award unjust.” 28 U.S.C. § 2812(d)(1)(A).
27
The parties do not dispute that plaintiff was the prevailing party by virtue of the Court’s
28
2
1
reversal and remand to the ALJ.2 The parties also do not dispute that plaintiff’s calculation of fees
2
is reasonable, if the Court finds that fees should be awarded.3 Rather, the Commissioner opposes
3
the instant motion on grounds that the government’s position was substantially justified. Should
4
the Court award fees, the Commissioner argues that the fees should be paid directly to plaintiff
5
and not to her counsel. The Court addresses each of the Commissioner’s arguments, in turn.
A.
6
7
Substantial Justification
The term “substantially justified” does not mean “justified to a high degree, but rather
justified in substance or in the main—that is, justified to a degree that could satisfy a reasonable
9
person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotations omitted). A
10
substantially justified position must have a “reasonable basis both in law and fact.” Id. The
11
United States District Court
Northern District of California
8
standard can be satisfied if there is a “genuine dispute” or if “reasonable people could differ as to
12
the appropriateness of the contested action.” Id. (internal quotations and alterations omitted).
13
The fact that one court disagreed with the government “does not establish whether its position was
14
substantially justified.” Id. at 569. “The language of the EAJA creates a presumption in favor of
15
awarding attorneys’ fees, and therefore the burden of establishing substantial justification is placed
16
with the government.” Campos v. Colvin, No. 13-CV-03327, 2015 WL 2266692, at *1 (N.D. Cal.
17
May 14, 2015); Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (the government bears
18
2
19
20
21
22
23
24
25
26
27
28
“[A] party is eligible for fees under EAJA if he wins at any intermediate stage in the
proceedings.” Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998).
3
The Court, having done its own review, concurs that the amount of requested attorney’s
fees is reasonable. Plaintiff requests attorney’s fees for 45.75 hours of work at an average hourly
rate of approximately $190.26 per hour, charging $190.06 for hours worked in 2014 and $190.28
for hours worked in 2015 and 2016. The Ninth Circuit set the maximum hourly rates under the
EAJA as $190.06 in 2014, $190.28 in 2015, and $191.70 for the first half of 2016. See Statutory
Maximum Rates under the Equal Access to Justice Act, United States Courts for the Ninth Circuit,
http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039. Additionally, plaintiff’s
counsel voluntarily reduced the fee by 25% because the Court did not enter an order on all issues
raised in plaintiff’s cross-motion for summary judgment, resulting in a total sum of $6,528.34.
Plaintiff’s request here is comparable to other cases in which courts in this District have awarded
fees under the EAJA. See, e.g., White v. Colvin, No. 14-CV-05584, 2015 WL 7429392, at *3
(N.D. Cal. Nov. 23, 2015) (48.44 hours of attorney’s fees in the amount of $9853.31 was not
excessive or unreasonable); Palomares v. Astrue, No. 11-CV-4515, 2012 WL 6599552, at *8–9
(N.D. Cal. Dec. 18, 2012) (37.9 hours of attorney’s fees in the amount of $6953.63 was
reasonable); Afanador v. Sullivan, 809 F. Supp. 61, 66 (N.D. Cal. 1992) (granting EAJA fees for
22.3 hours of work performed by plaintiff’s attorney and 9.5 hours performed by attorney’s clerk).
3
1
2
the burden of showing that its position was substantially justified under EAJA).
Here, the Court remanded the action based on the ALJ’s failure to (i) address the opinions
3
of Dr. Wang—plaintiff’s treating cardiologist; and (ii) explain his bases for discounting Dr.
4
Sanchez’s opinions. The Ninth Circuit has held that an ALJ’s failure to “offer specific and
5
legitimate reasons, supported by substantial evidence, for rejecting [a treating physician’s]
6
opinion” warranted a finding that the “government’s underlying action was not substantially
7
justified.” Meier, 727 F.3d at 872. Moreover, the Ninth Circuit has held that an ALJ’s failure to
8
make a specific finding in a disability case is a “serious” procedural error. Shafer v. Astrue, 518
9
F.3d 1067, 1071–72 (9th Cir. 2008) (holding that ALJ committed “fundamental procedural errors”
by failing to provide “clear and convincing reasons” for rejecting a treating physician’s opinion,
11
United States District Court
Northern District of California
10
and reversing district court’s denial of attorney’s fees under the EAJA); Corbin, 149 F.3d at 1053
12
(holding that the “failure to make findings and weigh evidence” are “serious” procedural errors).
13
“[T]he defense of basic and fundamental errors such as [the failure to make findings and weigh
14
evidence] is difficult to justify.” Corbin, 149 F.3d at 1053.
15
The cases upon which the Commissioner relies in opposition are factually distinguishable
16
and therefore do not persuade. In both Lewis v. Barnhart, 281 F.3d 1081 (9th Cir. 2002) and
17
Hardisty v. Astrue, 592 F.3d 1072 (9th Cir. 2010), the ALJ made specific, fact-based findings,
18
supported by the record, even though the district court did not ultimately agree with the result.
19
Lewis, 281 F.3d at 1083, 1086 (affirming district court’s denial of motion for attorney’s fees
20
where ALJ made specific findings regarding the petitioner’s residual functional capacity and the
21
“evidence was not entirely lacking in ambivalence”); Hardisty, 592 F.3d at 1080 (affirming denial
22
of attorney’s fees where the “adverse credibility finding was substantially justified because all of
23
the inferences upon which it rested had substance in the record”).4
24
4
25
26
27
28
The Commissioner also cites cases in the context of summary judgment that are similarly
unpersuasive here. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (finding that
the ALJ provided “specific and legitimate reasons” for rejecting medical opinion and
acknowledging that an ALJ must do so before rejecting the opinion of a treating physician);
Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming denial of
disability insurance benefits where ALJ provided reasons for discounting opinions of certain
doctors); Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (holding that the ALJ decision
was supported by “substantial evidence” although ALJ did not discuss a certain medical review
4
Accordingly, the Court finds that the Commissioner has failed to meet her burden to show
1
2
that the government was substantially justified in defending the ALJ’s determination.
B.
3
The Fee Award May Be Payable to Counsel Directly
Plaintiff submits a signed fee assignment and requests that payment of the requested fee
4
5
award be made directly to her counsel. The Commissioner opposes, arguing the payment must be
6
made directly to plaintiff under Astrue v. Ratliff, 560 U.S. 586, 590 (2010) and pursuant to the
7
government’s discretionary waiver of the requirements of the Anti-Assignment Act, 31 U.S.C. §
8
3727.
9
In Ratliff, the Supreme Court held that EAJA fees are subject to offset if the prevailing
party owes a government debt. Ratliff, 560 U.S. at 589, 592–93. Therefore, “[w]hen a pre-
11
United States District Court
Northern District of California
10
existing government debt exists, EAJA fees are payable to plaintiff rather than plaintiff’s attorney
12
in order to satisfy the debt.” Yesipovich v. Colvin, No. 15-CV-00112, 2015 WL 5675869, at *8
13
(N.D. Cal. Sept. 28, 2015). By contrast, where the plaintiff does not owe a debt to the government
14
and there has been a valid assignment of fees, courts in this District have recognized that Ratliff
15
does not prevent payment of a fee award directly to an attorney. See, e.g., Potter v. Colvin, No.
16
14-CV-02562, 2015 WL 7429376, at *4 (N.D. Cal. Nov. 23, 2015) (holding that payment of an
17
EAJA fee award may be made directly to the attorney where there has been a valid assignment of
18
fees and the plaintiff does not owe a debt to the government); Yesipovich, 2015 WL 5675869, at
19
*8 (same); Hampton v. Colvin, No. 13-CV-04624, 2015 WL 1884313, at *7 (N.D. Cal. Apr. 23,
20
2015) (same).
21
Under the Anti-Assignment Act, a claim against “the United States may not be assigned to
22
a third party unless [certain] technical requirements are met.” United States v. Kim, 806 F.3d
23
1161, 1169 (9th Cir. 2015); 31 U.S.C. § 3727. “[I]n modern practice, the obsolete language of the
24
25
26
27
28
because the court found that such evidence was “neither significant nor probative” and the ALJ
discussed the neuropsychologist’s report on which the review was based); Tonapetyan v. Halter,
242 F.3d 1144, 1149 (9th Cir. 2001) (holding that the ALJ “gave sufficient reasons, supported by
substantial evidence” for rejecting the treating physician’s opinion); Young v. Heckler, 803 F.2d
963, 967–69 (9th Cir. 1986) (holding that the ALJ had substantial evidence to support conclusion
regarding appellant’s disability and made “specific findings discounting appellant’s claims”).
5
1
Anti-Assignment Act means that the Government has the power to pick and choose which
2
assignments it will accept and which it will not.” Kim, 806 F.3d at 1169–70. The Anti-
3
Assignment Act “applies to an assignment of EAJA fees in a Social Security Appeal for disability
4
benefits.” Yesipovich, 2015 WL 5675869, at *8.
5
Here, there is no information on whether plaintiff owes any debt to the government.
6
Therefore, the EAJA fee shall be paid directly to plaintiff’s counsel, subject to any administrative
7
offset due to outstanding federal debt and subject to the government’s waiver of the requirements
8
under the Anti-Assignment Act. See id.
9
10
III.
CONCLUSION
For the foregoing reasons, plaintiff’s motion for an award of attorney’s fees is GRANTED.
United States District Court
Northern District of California
11
Plaintiff is entitled to an award of attorney’s fees under the EAJA in the amount of $6,528.34, and
12
costs as allowed by law. The government shall pay the fee directly to plaintiff’s counsel Ms.
13
McCabe, subject to the conditions previously stated.
14
This Order terminates Docket Number 31.
15
16
IT IS SO ORDERED.
17
Dated: September 13, 2016
18
19
______________________________________
YVONNE GONZALEZ ROGERS
UNITED STATES DISTRICT COURT JUDGE
20
21
22
23
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?