Nasery v. Colvin

Filing 26

ORDER Regarding Motion for Attorneys' Fees and Costs [Doc. No. 22 ]. Signed by Judge Cathy Ann Bencivengo on 12/21/2017. (jjg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAHIMA NASERY,

Case No.: 16CV1534-CAB-KSC
Plaintiff,

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v.

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

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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On August 4, 2017, Magistrate Judge Karen S. Crawford issued a Report and
Recommendation (“Report”) to grant Plaintiff Rahima Nasery’s motion for summary
judgment, deny Defendant Berryhill’s cross-motion for summary judgment, and remand
the case back to the Commissioner for further proceedings. [Doc. No. 19.] On January
19, 2017, this Court issued an order adopting the Report, granting Plaintiff’s motion for
summary judgment, denying Defendant’s motion for summary judgment, and remanding
for further proceedings. [Doc. No. 20.] On November 14, 2017, Plaintiff filed a motion
for attorneys’ fees. [Doc. No. 22.] On November 22, 2017, Defendant filed an
opposition to the motion. [Doc. No. 24.] On December 17, 2017, Plaintiff filed a reply
to the opposition. [Doc. No. 25.] After a careful review of the submissions of the parties,

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the Court GRANTS WITH MODIFICATION Plaintiff’s motion for attorneys’

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fees/costs as set forth below.

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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 with modification, as

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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)).

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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’s decision is incomplete

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because it does not include an analysis of how plaintiff’s ability to function in a work

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setting is affected by her “mild limitations” in mental functioning [Doc. No. 19 at 37-41];

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(2) the ALJ’s decision is incomplete because it is apparent the ALJ rejected plaintiff’s

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pain testimony but did not provide clear and convincing reasons for doing so [Doc. No.

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19 at 41-43]. For the reasons set forth in the Report, the Commissioner’s position was not

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substantially justified. [See generally, Doc. No. 19.] Moreover, given that several errors

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were made by the ALJ, the government’s position is not substantially justified. See

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Herron v. Colvin, 585 Fed. Appx. 511, 512-13 (9th Cir. 2014)(where ALJ made a series

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of legal errors, the government’s position was not substantially justified). Finally, given

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that the underlying government position was not substantially justified, the government

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was also not substantially justified in defending the previous action. See Sampson v.

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Chater, 103 F.3d 918, 922 (citations omitted).
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C. Reasonableness of Fees.
1. Hours billed.
Plaintiff's counsel seeks compensation for 78 hours billed in this matter. [Doc. No.

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22-2 at ¶7.] The Commissioner argues that the number of hours Plaintiff's attorneys

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claim to have spent litigating this action is unreasonable. Specifically, the Commissioner

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asserts that the work could have been accomplished in 31.5 hours. [Doc. No. 24 at 7.]

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

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itemization showing the number of hours expended for each task. [Doc. No. 22-2 at 4-5.]

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The Commissioner disputes the reasonableness of the hours spent on particular tasks and

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

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task. [Doc. No. 24 at 5-8.] However, the Court sees no reason to dispute Plaintiff’s

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counsel’s representation that all hours were reasonably expended. The Administrative

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Record in this case was approximately 600 pages long, and Plaintiff had complicated

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physical and mental health diagnoses, all of which had to be evaluated against Social

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Security regulations and guidelines. Given the complexity of the matter, as well as the

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fact that Plaintiff’s counsel submitted almost 40 pages of briefing in this matter (not

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including the motion for attorneys’ fees), 78 hours of attorney time is not unreasonable.

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See Patterson v. Apfel, 99 F.Supp.2d 1212, 1213 (C.D. Cal. 2000).

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2. Reasonable Hourly Rate.

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Under the EAJA, attorneys’ fees “shall not be awarded in excess of $125 per hour

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unless the court determines that an increase in the cost of living or a special factor, such
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as the limited availability of qualified attorneys for the proceedings involved, justifies a

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higher fee.” 28 U.S.C. § 2412(d)(2)(A).

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a. Cost of Living Increase
In the Ninth Circuit, “appropriate cost-of-living increases are calculated by

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multiplying the $125 statutory rate by the annual average consumer price index figure for

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all urban consumers (‘CIP-U’) for the years in which counsel’s work was performed, and

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then dividing by the CPI-U figure for March 1996, the effective date of the EAJA’s $125

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statutory rate.” Thangaraja, 428 F.3d 870, 876-77 (9th Cir. 2005).

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Plaintiff correctly states that the hourly rate for EAJA fees is $190.28 for 2016 and
$195.95 for 2017. [Doc. No. 22-1 at 8.] Defendant does not dispute these rates.

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b. Special Factor Enhancement.
Plaintiff’s counsel, Alexandra Manbeck, argues that she should receive an

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enhancement of $50 per hour because she has unique knowledge and skills in social

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security law which are not available to Plaintiff at the statutory rate, and because

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counsel’s specialized knowledge of the Vietnamese language and culture makes her

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indispensable to Plaintiff’s ability to vindicate her civil rights. [Doc. No. 22-1 at 9-15.]

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However, as Defendant points out: (1) Plaintiff is from Afghanistan, not Vietnam; (2)

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Plaintiff has resided in the United States since she was 9 years old; (3) she attended the

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University of Alabama for two or three years; (3) she had a driver’s license and was able

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to drive; (4) she had worked at Nordstrom and Nieman Marcus; (5) she spoke fluent

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English at her hearing. [Doc. No. 24 at 9.] Therefore, Plaintiff’s counsel’s language and

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cultural skills in Vietnamese are not relevant to this case and do not justify an

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enhancement of the hourly rate. See Jawad v. Barnhart, 370 F.Supp.2d 1077, 1089 (S.D.

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Cal. 2005)(Ms. Manbeck’s ability to speak Vietnamese, where plaintiff was from Iraq,

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was irrelevant to the litigation and not grounds to increase the fee).

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D. Costs.

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Plaintiff’s request for costs in the amount of $400 for the filing fee is not disputed

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by Defendant and is reasonable.
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CONCLUSION

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

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GRANTED WITH MODIFICATION as follows: Plaintiff is awarded $14, 976.50 in

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attorney’s fees, plus $400.00 in costs.

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IT IS SO ORDERED.

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Dated: December 21, 2017

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