Sarmento v. Social Security Commissioner

Filing 53

Judge Rya W. Zobel: ORDER entered denying as moot 41 Motion for Attorney Fees; granting 48 Motion for Attorney Fees (DiBlasi, Lily)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-11724-RWZ

MARIA SARMENTO
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security
MEMORANDUM OF DECISION
June 24, 2013

ZOBEL, D.J.
Plaintiff Maria Sarmento petitions for an award of attorney fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Defendant Carolyn W. Colvin, in
her official capacity as Acting Commissioner of Social Security (“the Commissioner”),1
opposes the petition.
I.

Background
Sarmento suffered a lower back injury in 2006 while working as a certified

nurse’s aid.2 She applied for social security disability benefits, which were finally
denied on May 11, 2010. The administrative law judge (“ALJ”) who denied Sarmento
benefits rejected her testimony that she was subject to ongoing, often severe pain from

1

Colvin is automatically substituted for her predecessor in office, Michael J. Astrue. See Fed. R.
Civ. P. 25(d).
2

My previous order gives more details regarding Sarmento’s injury, her medical treatment, and
the subsequent administrative proceedings. See Docket # 22.

her injury. However, the ALJ’s only explanation for rejecting Sarmento’s testimony was
that some parts of her medical record did not indicate severe and ongoing pain.
Sarmento filed suit in this court and moved for an order reversing the
Commissioner’s decision. I allowed her motion, finding that the ALJ’s decision was not
supported by substantial evidence. Specifically, I held that the ALJ’s explanation for
rejecting Sarmento’s testimony was insufficient as a matter of law. See 20 C.F.R.
§ 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and
persistence of your pain . . . solely because the available objective medical evidence
does not substantiate your statements.”); Nguyen v. Chater, 172 F.3d 31, 34-36 (1st
Cir. 1999). I therefore reversed the Commissioner’s decision and remanded solely for
calculation and award of benefits.
The Commissioner moved to amend the judgment, asking me to remand for
redetermination of Sarmento’s entitlement to benefits rather than just a calculation and
award of benefits. I denied the Commissioner’s motion. The Commissioner then
appealed on both the underlying judgment and the motion to amend that judgment.
About two months later, the Commissioner voluntarily dismissed the appeal after the
parties agreed to seek an order remanding the case for redetermination of Sarmento’s
entitlement to benefits. The case was subsequently remanded; and on remand, the
Commissioner issued a fully favorable decision finding that Sarmento has been
disabled since her injury in 2006.
II.

Analysis
As relevant here, the EAJA provides that a court shall award reasonable
2

attorney fees to a “prevailing party” in a suit against the United States, including a
proceeding for judicial review of agency action, “unless the court finds that the position
of the United States was substantially justified or that special circumstances make an
award unjust.” 28 U.S.C. § 2412(d)(1)(A). The party seeking fees must submit an
itemized statement showing the time expended by each attorney. Id. § 2412(d)(1)(B).
Sarmento originally sought fees for work performed by two of her attorneys,
Raymond J. Kelly and Sarah H. Bohr. The parties subsequently entered into an
agreement regarding Kelly’s fees. Sarmento now seeks only the fees incurred by Bohr,
who represented her in connection with the Commissioner’s appeal to the First Circuit
and the subsequent negotiated settlement. She requests $6,677.40 for 35.9 hours that
Bohr spent in connection with the underlying case; in addition, she requests $2,232.00
for 12 hours that Bohr spent in connection with the fee petition. In both cases, she
asserts that Bohr should be compensated at rate of $186.00 per hour.
A.

Prevailing Party

In opposing the fee petition, the Commissioner first argues that Sarmento was
not a “prevailing party” with respect to the First Circuit litigation. She agrees that
Sarmento prevailed before me by obtaining an order reversing the denial of benefits.
See Shalala v. Schaefer, 509 U.S. 292, 302 (1993). However, she argues that
Sarmento did not prevail on appeal, because the settlement that the parties agreed to
after the Commissioner appealed was less favorable to Sarmento than the judgment I
had previously entered. The Commissioner therefore asserts that Sarmento should not
be entitled to any fees incurred in opposing the appeal and negotiating a settlement.
3

That interpretation misconstrues the term “prevailing party.” In deciding an EAJA
petition, the court does not ask who prevailed at one particular stage of the litigation.
Instead, “the EAJA—like other fee shifting statutes—favors treating a case as an
inclusive whole, rather than as atomized line-items.” Comm’r v. Jean, 496 U.S. 154,
161-62 (1990). As such, the court must “arrive at one conclusion that simultaneously
encompasses and accommodates the entire civil action.” Saysana v. Gillen, 614 F.3d
1, 5 (1st Cir. 2010) (quoting Dantran, Inc. v. U.S. Dep’t of Labor, 246 F.3d 36, 41 (1st
Cir. 2001)). The question is whether, at the end of the day, the plaintiff has eventually
succeeded on any significant issue in the litigation and thereby obtained some of the
benefit she sought by bringing suit. See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983).
Here, considering the suit as a whole, Sarmento is clearly a prevailing party. She
brought suit to reverse the decision denying her benefits, and she succeeded in that
aim. She is therefore entitled to seek fees for all the time her attorneys spent to reach
that result, both at the district court level and on appeal.
B.

Substantial Justification

Next, the Commissioner argues that fees are inappropriate because her position
was substantially justified. See 28 U.S.C. § 2412(d)(1)(A). She supports that contention
only by asserting that her position on appeal was clearly justified, since the parties
eventually agreed to adopt that position—that is, to seek a remand for redetermination
of Sarmento’s entitlement to benefits. But it is not enough for the Commissioner to
show that her position on appeal was substantially justified; she must also show that
4

“the action or failure to act by the agency upon which the civil action is based” was
substantially justified. 28 U.S.C. § 2412(d)(2)(D); see also Jean, 496 U.S. 158-59. To
quote the First Circuit: “In the present case we can concede that many of the
government’s litigating positions were reasonable and, hence, ‘substantially justified.’
The central question facing us, however, is whether the underlying agency action was
reasonable.” McDonald v. Sec’y of Health & Human Servs., 884 F.2d 1468, 1475-76
(1st Cir. 1989).
It is the Commissioner’s burden to show that her original action was substantially
justified. Saysana, 614 F.3d at 5. She has not even attempted to carry that burden
here. Even if she had pressed the issue, it would not avail her. The ALJ’s decision to
reject Sarmento’s testimony about her pain, based solely on some inconsistent
evidence in her medical record, was not substantially justified. See 20 C.F.R. §
404.1529(c)(2); Nguyen, 172 F.3d at 34-36.
C.

Special Circumstances

Third, the Commissioner argues that special circumstances make the award of
fees unjust here. She points out that Sarmento initially opposed remanding her case for
a redetermination of entitlement to benefits, but subsequently acceded to that outcome
after the appeal was filed. In the Commissioner’s eyes, Sarmento should be
responsible for her own costs on appeal, because she could have avoided the appeal
by simply conceding the issue immediately.
These are not the “special circumstances” that should bar an award of fees
under the EAJA. Cf. Priestly v. Astrue, 651 F.3d 410, 413 (4th Cir. 2011) (holding that
5

“the use of nonadmitted lawyers for brief writing services does not present a ‘special
circumstance’ sufficient to deny a fee award as ‘unjust’ under the EAJA”). Sarmento
was fully entitled to oppose the Commissioner’s motion to amend the judgment; she
was equally entitled to decide, after the Commissioner appealed, that she was willing to
concede the point in order to have the appeal dismissed. Settlement involves some
give and take on both sides. The fact that Sarmento settled for an outcome she had
previously opposed is not a special circumstance making a fee award unjust here.
D.

Reasonable Hours

Finally, the Commissioner challenges the reasonableness of the hours
requested.3 She presents several examples of entries in Bohr’s timesheet that she
considers duplicative, or that she finds insufficiently specific and detailed. I have
reviewed the challenged entries, and find that Sarmento has carried her burden to
show that the claimed number of hours is reasonable for the work performed. I am
convinced that Bohr has not billed more than conscientious lawyer should charge for
the work performed. See Hensley, 461 U.S. at 434.
In addition, I find that Sarmento has met her burden to show the additional hours
Bohr responding to the government’s opposition on fees were reasonable and
compensable under the EAJA. See Jean, 496 U.S. at 162. I therefore allow the

3

The Commissioner does not challenge the requested billing rate of $186 per hour. Although 28
U.S.C. § 2412(d)(2)(A)(ii) normally bars a billing rate higher than $125 per hour, I find that an increase in
the cost of living justifies the higher $186 per hour rate. The $125 limit was set in 1996. See Contract
with America Advancement Act of 1996, Pub. L. No. 104-121, § 232(b)(1), 110 Stat. 847, 863. According
to the Consumer Price Index (CPI) inflation calculator provided by the federal Bureau of Labor Statistics,
$125 in 1996 has the same buying power as $185.58 in June 2013. See Bureau of Labor Statistics, U.S.
Dep’t of Labor, CPI Inflation Calculator, http://www.bls.gov/data/inflation_calculator.htm (last visited June
20, 2013).

6

supplemental petition for fees.
III.

Conclusion
Sarmento’s amended petition for attorney fees (Docket # 48) is ALLOWED, as is

her supplemental petition for fees (Docket # 52). Fees are awarded in the amount of
$8,909.40.

7

Sarmento’s original petition for fees (Docket # 41) is DENIED AS MOOT.

June 24, 2013

/s/Rya W. Zobel

DATE

RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE

8