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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WAFAA ELEA AZIEZ,

Case No.: 15cv2272-CAB-JLB
Plaintiff,

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v.

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ORDER REGARDING MOTION
FOR ATTORNEYS’ FEES [Doc. No.
22]

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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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.

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DISCUSSION
Plaintiff has submitted an application for attorney's fees pursuant to the Equal

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Access to Justice Act, (“EAJA”) 28 U.S.C. section 2412. Defendant opposes the motion

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on the grounds that the government's position was substantially justified and that the fees

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requested are unreasonable. The Court grants plaintiff's application, as set forth below.

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The EAJA shifts the burden of attorney's fees from the private litigant to the

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government in order to reduce the chance that the expense of legal representation will

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deter defense against unreasonable government action. Wolverton v. Heckler, 726 F.2d

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580, 582 (9th Cir.1984). “[A] litigant is entitled to attorney's fees and costs if (1) [s]he is

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the prevailing party, (2) the government fails to show that its position was substantially

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justified or that special circumstances make an award unjust, and (3) the requested

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attorney's fees and costs are reasonable. 28 U.S.C. § 2412(d)(1)(A); Carbonell v. INS,

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429 F.3d 894, 898 (9th Cir.2005) (citing Perez–Arellano v. Smith, 279 F.3d 791, 793 (9th

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Cir.2002)) (further citation omitted).

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A. Plaintiff is the prevailing party.

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An applicant for Social Security benefits who receives a remand under sentence

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four of 42 U.S.C. section 405(g) is a prevailing party, regardless of whether the applicant

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later succeeds in obtaining the requested benefits. Shalala v. Shaefar, 509 U.S. 292, 302,

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113 S.Ct. 2625, 125 L.Ed.2d 239 (1993); Garnica v. Astrue, 378 Fed. Appx. 680, 681

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(9th Cir. 2010). The Court remanded this action to the ALJ pursuant to sentence four of

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42 U.S.C. section 405(g). [Doc. Nos. 19, 20.] Plaintiff is therefore a prevailing party. See

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Shalala, 509 U.S. at 302.

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B. The Commissioner has not shown that her position was substantially justified.

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The government bears the burden of showing that its position was, as a whole,

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substantially justified. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir.2001)

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(“Gutierrez II ”). To meet this standard, the government must advance a position that is

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“justified in substance or in the main—that is, justified to a degree that could satisfy a

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reasonable person.” Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir.2008) (citation and
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internal quotations omitted). In making this determination, a court “must focus on two

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questions: first, whether the government was substantially justified in taking its original

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action; and, second, whether the government was substantially justified in defending the

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validity of the action in court.” Gutierrez II, 274 F.3d at 1258–59 (quotations, citations,

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and modifications omitted). The Commissioner must show that her position was

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substantially justified “with respect to the issue on which the court based its remand.”

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Flores v. Shalala, 49 F.3d 562, 569 (9th Cir.1995). It is an abuse of discretion to find

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“that an agency's position was substantially justified when the agency's position was

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based on violations of ... the agency's own regulations....” Gutierrez II, 274 F.3d at 1259–

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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

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based its remand was not substantially justified. This Court found the Commissioner

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committed the following two errors of law and fact: (1) the ALJ did not meet the “clear

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and convincing” standard to discredit Plaintiff’s testimony [Doc. No. 19 at 16]; (2)

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Plaintiff presented a colorable claim of somatoform disorder and the ALJ failed to even

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mention it [Doc. No. 19 at 18]. For the reasons set forth in the Report, the

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Commissioner’s position was not substantially justified. [See generally, Doc. No. 19.]

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Moreover, given that several errors were made by the ALJ, the government’s position is

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not substantially justified. See Herron v. Colvin, 585 Fed. Appx. 511, 512-13 (9th Cir.

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2014)(where ALJ made a series of legal errors, the government’s position was not

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substantially justified). Finally, given that the underlying government position was not

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substantially justified, the government was also not substantially justified in defending

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the previous action. See Sampson v. Chater, 103 F.3d 918, 922 (citations omitted).

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C. The requested attorney's fees are reasonable.

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Plaintiff's counsel seeks an order awarding a total of $17,165.50 in attorney's fees.

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In the original motion, Plaintiff requested $17,466.07 in attorneys’ fees. That amount

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accounts for 12.2 hours of attorney time at the 2015 rate of $190.28 per hour and 73.1

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hours of attorney time at 2016 rate of $192.68 per hour, plus an additional 5.5 hours

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($1,059.74) for preparation of the fees motion. [Doc. No. 22-2 at 2-3.] The

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Commissioner argues that the number of hours Plaintiff's attorneys claim to have spent

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litigating this action is unreasonable. Specifically, the Commissioner asserts that the work

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could have been accomplished in 33.5 hours and suggests an award of $7,482.29. [Doc.

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No. 24 at 18.] In reply, Plaintiff agrees to a 5.1 hour reduction for time that is duplicative

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or clerical, and requests an additional 9 hours of for preparation of the reply, for a total of

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$17,165.50 in fees. [Doc. No. 25 at 9.]

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The EAJA directs the court to award reasonable fees. 28 U.S.C. § 2412(d)(2)(A).

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In determining whether a fee is reasonable, the court considers the hours expended, the

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reasonable hourly rate, and the results obtained. See Commissioner, INS v. Jean, 496 U.S.

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154 (1990); Hensley v. Eckerhart, 461 U.S. 424, 429 (1983), abrogated on other grounds

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by Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, (1989);

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Passatino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 515 (9th

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Cir.2000); Atkins v. Apfel, 154 F.3d 986 (9th Cir.1998).

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Here, the Commissioner does not dispute the reasonableness of the rates, but rather

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the number of hours expended. The Court finds that the requested rates, based upon the

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EAJA rate found on the Ninth Circuit Court of Appeals website, are reasonable.

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As to the number of hours expended, Plaintiff’s counsel has submitted detailed

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billing records showing the number of hours expended for each task. [Doc. No. 22-4 –

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22-5.] The Commissioner disputes the reasonableness of the hours spent on particular

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tasks and then suggests what she thinks would have been a reasonable amount of time for

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each task. [Doc. No. 24.] However, the Court sees no reason to dispute Plaintiff’s

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counsel’s representation that all hours were reasonably expended, especially after
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Plaintiff’s request was adjusted in the reply. The Administrative Record in this case was

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over 800 pages long, and Plaintiff had complicated physical and mental health diagnoses,

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all of which had to be evaluated against Social Security regulations and guidelines.

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Given the complexity of the matter, as well as the fact that Plaintiff’s counsel submitted

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over 40 pages of briefing in this matter (not including the motion for attorneys’ fees),

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85.7 hours of attorney time is not unreasonable. See Patterson v. Apfel, 99 F.Supp.2d

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1212, 1213 (C.D. Cal. 2000).1

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CONCLUSION
For the reasons set forth above, Plaintiff’s motion for attorneys’ fees is

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GRANTED in the amount of $16,539.88.

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Dated: June 13, 2017

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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.
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