Taylor v. Colvin

Filing 27

ORDER granting in part and denying in part 23 Motion for Attorney Fees; denying as moot 26 Motion for Order to Entry of Order Re: Plaintiff's Attorneys Contested Motion For An Award Of Fees Pursuant To EAJA. Defendant shall pay Plaintiff $6,282.45 in attorney's fees under the EAJA. By Judge Christine M. Arguello on 05/15/2015. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Action No. 13-cv-03152-CMA
RONALD C. TAYLOR,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART
MOTION FOR ATTORNEY FEES
PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
This matter is before the Court on Plaintiff’s Attorney’s Contested Motion for an
Award of Fees Pursuant to the Equal Access to Justice Act. (Doc. # 23.) Because the
Commissioner’s position in this case was not substantially justified, the Court grants this
motion to the extent Plaintiff is entitled to such fees, and denies this motion to the extent
that Plaintiff’s initial request of $8,020.69 in attorney and paralegal fees (a) was
premised on improper hourly rates and (b) cannot be paid to Plaintiff’s counsel directly.
I.

BACKGROUND

The facts and procedural history of this case are set out at length in the
Administrative Record (Doc. # 9), as well as in the briefing on the merits that both
parties submitted (Doc. ## 12, 16, 19), and this Court’s written order (Doc. # 21). In that
order, this Court reversed the July 27, 2012 decision of the Administrative Law Judge
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(AALJ@) and remanded the matter to Defendant, the Commissioner of Social Security, for
further proceedings. (Doc. # 21.) Pursuant to the Court’s Order, the Clerk of the Court
entered Judgment in Plaintiff’s favor. (Doc. # 22.) Thereafter, Plaintiff’s attorney1 filed
the instant motion (Doc. # 23), which is ripe for the Court’s review (Doc. ## 24, 25). 2
Plaintiff initially requested $8,020.69 in attorney and paralegal fees, but changed this
amount to $6,276.39 in his Reply upon finding a mathematical error. (Doc. # 25.)
II.
A.

DISCUSSION

WHETHER DEFENDANT’S POSITION WAS SUBSTANTIALLY JUSTIFIED
Under the EAJA, a party that prevails against the United States in court, including

a successful Social Security benefits claimant, may be awarded fees if the position of
the United States was not Asubstantially justified@ and there are no special
circumstances that make an award of fees unjust. 28 U.S.C. ' 2412(d)(1)(A); Gisbrecht
v. Barnhart, 535 U.S. 789, 796 (2002). As ample case law indicates, where, as here,
a Social Security disability claimant obtains a remand to the Commissioner under 42
U.S.C. ' 405(g), he is a prevailing party for purposes of the EAJA. See Shalala v.
Schaefer, 509 U.S. 292, 302 (1993). Further, the Commissioner does not assert any
special circumstances that would make an award of fees unjust.
The Commissioner bears the burden of demonstrating that her position was
substantially justified—a test that, in this Circuit, “means h[er] position was reasonable
in law and in fact and thus can be justified to a degree that could satisfy a reasonable
1

Plaintiff passed away on February 3, 2014. (Doc. # 26 at 1.) Throughout this order, the Court
references Plaintiff’s attorney as “Plaintiff” for simplicity.
2
On April 23, 2015, Plaintiff’s attorney filed Motion for Order to Entry of Order Re: Plaintiff’s
Attorney’s Contested Motion For An Award Of Fees Pursuant To EAJA. (Doc. # 26.)
2

person.” Harrold v. Astrue, 372 F. App’x. 903, 904 (10th Cir. 2010) (unpublished)
(internal quotation marks and citations omitted). “Both the Commissioner’s prelitigation
and litigation positions must have had reasonable bases in fact and law to be
considered substantially justified.” Id. Further, EAJA fees “generally should be
awarded where the government’s underlying action was unreasonable even if the
government advanced a reasonable litigation position.” Hackett v. Barnhart, 475 F.3d
1166, 1174 (10th Cir. 2007).
In the instant case, Plaintiff argued that the ALJ failed to consider his treating
source medical opinions. The Court agreed, and remanded on that basis alone,
because the failure to consider these opinions “casts doubt on the validity of the entirety
of the ALJ’s RFC.” (Doc. # 21.) The Court specifically held that the ALJ did not fully
adhere to the mandate that he must give “specific, legitimate reasons for his decision”
when he failed to consider the opinions of Drs. Kratchko and Binswanger. (Id. (citing
Drapeau v. Massanari, 255 F.3d 1211, 1213 (10th Cir. 2001))) This fundamental legal
error was unreasonable and, thus, Defendant’s position was not substantially justified.
Defendant’s arguments to the contrary are unavailing. First, Defendant absurdly
asserts that because Plaintiff argued that Denver Health is his treating source, she was
justified in failing to consider the opinions of Drs. Kratchko and Binswanger, physicians
who work at Denver Health. The Court is not convinced that Defendant can neglect a
legal principle identified by the Tenth Circuit based on Plaintiff’s characterization of his
treating sources. Indeed, the Court stated that it “cannot avoid remand, given the utter
lack of analysis as to the merits of these treating sources’ evaluations.”
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Additionally, the Court rejects Defendant’s argument that because Plaintiff’s
treating physicians’ opinions were completed Med-9 forms, she was substantially
justified in failing to consider them. Defendant cites Chapo v. Astrue, 682 F.3d 1285,
1289, 1292–93 (10th Cir. 2012) to support this assertion. However, in Chapo, the ALJ
“accorded little weight to” a treating physician’s Med-9 form. In the instant case,
Defendant failed to even consider Plaintiff’s treating physicians’ opinions. The law
related to evaluating a treating source’s opinion is well established; failure to fully follow
it, as occurred in this case, simply does not represent a close question for the Court.
B.

REASONABLENESS OF THE FEE REQUEST
Having determined that Plaintiff is entitled to fees under the EAJA, the Court next

considers the reasonableness of his request. As previously indicated, Plaintiff seeks
$6,276.39 in fees. (Doc. # 25 at 4.) This amount is calculated for 26.9 hours of attorney
time at the rate of $191.94 per hour and 12.1 hours of paralegal time at $92 per hour.
(See id.)
Defendant does not dispute the amount of attorney or paralegal time for which
Plaintiff seeks compensation. (Doc. # 24 at 6.) Instead, Defendant argues that Plaintiff
has not demonstrated that the requested rates are reasonable. In his Reply, Plaintiff
admits that he committed a mathematical error in his computation of attorney fees.
Thus, Plaintiff reduced his originally requested hourly rate of $241.94 to $192.47, which
is based upon the Consumer Price Index All Urban Consumers (CPI-U) West Urban.
The EAJA provides that attorney fees “shall not be awarded in excess of $125
per hour unless the court determines that an increase in the cost of living or a special
4

factor, such as the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.” 28 U.S.C. § 2412(d)(2)(A). The party seeking the award has the
burden of persuading the court that the rate sought is reasonable. Knight v. Astrue, No.
08-CV-02498-CMA, 2011 WL 4382541, at *4 (D. Colo. Sept. 19, 2011). “The initial
estimate of a reasonable attorney’s fee is properly calculated by multiplying the number
of hours reasonably expended on the litigation times a reasonable hourly rate.” Blum v.
Stenson, 465 U.S. 886, 888 (1984) (citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). The cost of living adjustment is determined by multiplying the base EAJA rate
($125.00) by the current CPI–U and then dividing the product by the CPI–U in the
month that the cap was imposed (October 1981 for pre-amendment cases, March 1996
for post-amendment cases). Sorenson v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001).
Defendant’s calculation for a reasonable hourly rate is based upon the CPI-U, not
the CPI-U West Urban. The CPI-U West Urban, however, is the correct index to use
because it covers thirteen states in the West Region, including Colorado, which is
where Plaintiff’s attorney rendered his services. See Consumer Price Index, West
Region, U.S. Department of Labor Bureau of Labor Statistics at 3 (accessed on May 13,
2015), http://www.bls.gov/regions/west/news-release/pdf/consumerpriceindex_west.pdf;
Bowers v. Astrue, No. 07-CV-00454-WYD, 2008 WL 2568801, at *3 (D. Colo. June 24,
2008) (using CPI-U West Urban). Pursuant to the cost-of-living calculations, 3 Plaintiff is

3

EAJA ($125) times the CPI-U West Urban in February 2014 ($237.61), divided by the CPI-U in
March 1996 ($156.40) equals $189.90; EAJA ($125) times the CPI-U West Urban in April 2014
($239.80), divided by the CPI-U in March 1996 ($156.40) equals $191.65; EAJA ($125) times
the CPI-U West Urban in June 2014 ($241.62), divided by the CPI-U in March 1996 ($156.40)
5

awarded attorney fees at the hourly rate of $191.99 for 26.9 hours of work performed,
which equals $5,164.53. 4
Defendant next argues that Plaintiff’s request to pay his paralegal $125 per hour
is excessive. Plaintiff claims “Defendant has a point,” and states “assuming arguendo”
that a $60 per hour rate is correct, the total paralegal fees equal $1,113.20. Plaintiff has
not put forth any argument that a paralegal rate of $125 per hour is reasonable nor
argued that $60 is not the correct rate to use. Thus, the Court finds that $60 for a
paralegal fee is a reasonable amount. Meyers-Schreiner v. Astrue, No. CIV.A08-CV00573-WYD, 2009 WL 1464404, at *1 (D. Colo. May 26, 2009) (awarding a rate of $60
per hour for a paralegal). Accordingly, pursuant to the cost-of-living calculations, 5
Plaintiff is awarded paralegal fees at an hourly rate of $92.39 for 12.1 hours of paralegal
time, which equals $1,117.92. 6
Finally, although Plaintiff’s attorney requests that the fee award be paid to him
directly, “the clear language of the [EAJA] provides that attorney’s fees are paid to the
prevailing party, not the attorney.” Manning v. Astrue, 510 F.3d 1246, 1254 (10th Cir.
2007); see also Astrue v. Ratliff, 560 U.S. 586, 594 (2010).

equals $193.11; EAJA ($125) times the CPI-U West Urban in July 2014 ($241.85), divided by
the CPI-U in March 1996 ($156.40) equals $193.29. The average equals $191.99.
4
This total amount is slightly higher than Plaintiff’s total amount of $5,163.19 because Plaintiff
incorrectly used the CPI-U West Urban for May 2014 instead of February 2014, which is when
services were rendered. (Doc. # 23-1.)
5
$60 times the CPI-U West Urban in April 2014 ($239.80), divided by the CPI-U in March 1996
($156.40) equals $91.99; $60 times the CPI-U West Urban in July 2014 ($241.85), divided by
the CPI-U in March 1996 ($156.40) equals $92.78. The average equals $92.39.
6
This calculation is slightly higher than the amount Plaintiff calculated because Plaintiff
committed a mathematical error.
6

III.

CONCLUSION

For the foregoing reasons, it is ORDERED that Plaintiff’s Attorney’s Contested
Motion for an Award of Fees Pursuant to the Equal Access to Justice Act (Doc. # 23) is
GRANTED in part to the extent Plaintiff is entitled to such fees because Defendant’s
position was not “substantially justified,” and DENIED IN PART to the extent that
Plaintiff’s initial request of $8,020.69 in attorney and paralegal fees (a) was premised on
improper hourly rates and (b) cannot be paid to Plaintiff’s counsel directly. Accordingly,
it is
FURTHER ORDERED that Defendant shall pay Plaintiff $6,282.45 in attorney’s
fees under the EAJA. It is
FURTHER ORDERED that Plaintiff’s Motion for Order to Entry of Order Re:
Plaintiff’s Attorney’s Contested Motion For An Award Of Fees Pursuant To EAJA (Doc.
# 26) is DENIED as MOOT.
DATED: May

15

, 2015
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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