Aziez v. Colvin

Filing 27

ORDER Regarding Motion for Attorneys' Fees [Doc. No. 22 ]. Signed by Judge Cathy Ann Bencivengo on 6/13/2017. (jjg)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 WAFAA ELEA AZIEZ, Case No.: 15cv2272-CAB-JLB Plaintiff, 12 13 v. 14 ORDER REGARDING MOTION FOR ATTORNEYS’ FEES [Doc. No. 22] NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 27 On December 27, 2016, Magistrate Judge Jill L. Burkhardt issued a Report and Recommendation (“Report”) to grant Plaintiff Wafaa Aziez’s motion for summary judgment and to deny Defendant Berryhill’s cross-motion for summary judgment. [Doc. No. 19.] On January 19, 2017, this Court issued an order adopting the Report, granting Plaintiff’s motion for summary judgment, and denying Defendant’s motion for summary judgment. [Doc. No. 20.] On April 19, 2017, Plaintiff filed a motion for attorneys’ fees. [Doc. No. 22.] On May 4, 2017, Defendant filed an opposition to the motion. [Doc. No. 24.] On May 11, 2017, Plaintiff filed a reply to the opposition. [Doc. No. 25.] After a careful review of the submissions of the parties, the Court GRANTS Plaintiff’s motion for attorneys’ fees. 28 1 15cv2272-CAB-JLB 1 2 DISCUSSION Plaintiff has submitted an application for attorney's fees pursuant to the Equal 3 Access to Justice Act, (“EAJA”) 28 U.S.C. section 2412. Defendant opposes the motion 4 on the grounds that the government's position was substantially justified and that the fees 5 requested are unreasonable. The Court grants plaintiff's application, as set forth below. 6 The EAJA shifts the burden of attorney's fees from the private litigant to the 7 government in order to reduce the chance that the expense of legal representation will 8 deter defense against unreasonable government action. Wolverton v. Heckler, 726 F.2d 9 580, 582 (9th Cir.1984). “[A] litigant is entitled to attorney's fees and costs if (1) [s]he is 10 the prevailing party, (2) the government fails to show that its position was substantially 11 justified or that special circumstances make an award unjust, and (3) the requested 12 attorney's fees and costs are reasonable. 28 U.S.C. § 2412(d)(1)(A); Carbonell v. INS, 13 429 F.3d 894, 898 (9th Cir.2005) (citing Perez–Arellano v. Smith, 279 F.3d 791, 793 (9th 14 Cir.2002)) (further citation omitted). 15 A. Plaintiff is the prevailing party. 16 An applicant for Social Security benefits who receives a remand under sentence 17 four of 42 U.S.C. section 405(g) is a prevailing party, regardless of whether the applicant 18 later succeeds in obtaining the requested benefits. Shalala v. Shaefar, 509 U.S. 292, 302, 19 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); Garnica v. Astrue, 378 Fed. Appx. 680, 681 20 (9th Cir. 2010). The Court remanded this action to the ALJ pursuant to sentence four of 21 42 U.S.C. section 405(g). [Doc. Nos. 19, 20.] Plaintiff is therefore a prevailing party. See 22 Shalala, 509 U.S. at 302. 23 B. The Commissioner has not shown that her position was substantially justified. 24 The government bears the burden of showing that its position was, as a whole, 25 substantially justified. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir.2001) 26 (“Gutierrez II ”). To meet this standard, the government must advance a position that is 27 “justified in substance or in the main—that is, justified to a degree that could satisfy a 28 reasonable person.” Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir.2008) (citation and 2 15cv2272-CAB-JLB 1 internal quotations omitted). In making this determination, a court “must focus on two 2 questions: first, whether the government was substantially justified in taking its original 3 action; and, second, whether the government was substantially justified in defending the 4 validity of the action in court.” Gutierrez II, 274 F.3d at 1258–59 (quotations, citations, 5 and modifications omitted). The Commissioner must show that her position was 6 substantially justified “with respect to the issue on which the court based its remand.” 7 Flores v. Shalala, 49 F.3d 562, 569 (9th Cir.1995). It is an abuse of discretion to find 8 “that an agency's position was substantially justified when the agency's position was 9 based on violations of ... the agency's own regulations....” Gutierrez II, 274 F.3d at 1259– 10 60 (citing Mendenhall v. NTSB, 92 F.3d 871, 874 (9th Cir.1996)). Here, the Commissioner’s position with respect to the issues on which the Court 11 12 based its remand was not substantially justified. This Court found the Commissioner 13 committed the following two errors of law and fact: (1) the ALJ did not meet the “clear 14 and convincing” standard to discredit Plaintiff’s testimony [Doc. No. 19 at 16]; (2) 15 Plaintiff presented a colorable claim of somatoform disorder and the ALJ failed to even 16 mention it [Doc. No. 19 at 18]. For the reasons set forth in the Report, the 17 Commissioner’s position was not substantially justified. [See generally, Doc. No. 19.] 18 Moreover, given that several errors were made by the ALJ, the government’s position is 19 not substantially justified. See Herron v. Colvin, 585 Fed. Appx. 511, 512-13 (9th Cir. 20 2014)(where ALJ made a series of legal errors, the government’s position was not 21 substantially justified). Finally, given that the underlying government position was not 22 substantially justified, the government was also not substantially justified in defending 23 the previous action. See Sampson v. Chater, 103 F.3d 918, 922 (citations omitted). 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 3 15cv2272-CAB-JLB 1 C. The requested attorney's fees are reasonable. 2 Plaintiff's counsel seeks an order awarding a total of $17,165.50 in attorney's fees. 3 In the original motion, Plaintiff requested $17,466.07 in attorneys’ fees. That amount 4 accounts for 12.2 hours of attorney time at the 2015 rate of $190.28 per hour and 73.1 5 hours of attorney time at 2016 rate of $192.68 per hour, plus an additional 5.5 hours 6 ($1,059.74) for preparation of the fees motion. [Doc. No. 22-2 at 2-3.] The 7 Commissioner argues that the number of hours Plaintiff's attorneys claim to have spent 8 litigating this action is unreasonable. Specifically, the Commissioner asserts that the work 9 could have been accomplished in 33.5 hours and suggests an award of $7,482.29. [Doc. 10 No. 24 at 18.] In reply, Plaintiff agrees to a 5.1 hour reduction for time that is duplicative 11 or clerical, and requests an additional 9 hours of for preparation of the reply, for a total of 12 $17,165.50 in fees. [Doc. No. 25 at 9.] 13 The EAJA directs the court to award reasonable fees. 28 U.S.C. § 2412(d)(2)(A). 14 In determining whether a fee is reasonable, the court considers the hours expended, the 15 reasonable hourly rate, and the results obtained. See Commissioner, INS v. Jean, 496 U.S. 16 154 (1990); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), abrogated on other grounds 17 by Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, (1989); 18 Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 515 (9th 19 Cir.2000); Atkins v. Apfel, 154 F.3d 986 (9th Cir.1998). 20 Here, the Commissioner does not dispute the reasonableness of the rates, but rather 21 the number of hours expended. The Court finds that the requested rates, based upon the 22 EAJA rate found on the Ninth Circuit Court of Appeals website, are reasonable. 23 As to the number of hours expended, Plaintiff’s counsel has submitted detailed 24 billing records showing the number of hours expended for each task. [Doc. No. 22-4 – 25 22-5.] The Commissioner disputes the reasonableness of the hours spent on particular 26 tasks and then suggests what she thinks would have been a reasonable amount of time for 27 each task. [Doc. No. 24.] However, the Court sees no reason to dispute Plaintiff’s 28 counsel’s representation that all hours were reasonably expended, especially after 4 15cv2272-CAB-JLB 1 Plaintiff’s request was adjusted in the reply. The Administrative Record in this case was 2 over 800 pages long, and Plaintiff had complicated physical and mental health diagnoses, 3 all of which had to be evaluated against Social Security regulations and guidelines. 4 Given the complexity of the matter, as well as the fact that Plaintiff’s counsel submitted 5 over 40 pages of briefing in this matter (not including the motion for attorneys’ fees), 6 85.7 hours of attorney time is not unreasonable. See Patterson v. Apfel, 99 F.Supp.2d 7 1212, 1213 (C.D. Cal. 2000).1 8 CONCLUSION For the reasons set forth above, Plaintiff’s motion for attorneys’ fees is 9 10 GRANTED in the amount of $16,539.88. 11 Dated: June 13, 2017 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 1 28 Given the concessions made in the reply as to duplicative and clerical hours, the Court declines to award an additional 9 hours for preparation of the reply. 5 15cv2272-CAB-JLB

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