Cole v. Berryhill

Filing 23

ORDER: 1. Cole's 20 Application for an Award of EAJA Fees is GRANTED. 2. Cole is entitled to recover attorney's fees under EAJA in the amountof $10,036.29. Signed by Magistrate Judge John Johnston on 11/6/2018. (ACC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
DREW J. COLE,
Plaintiff,

CV 17-46-GF-JTJ

vs.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,

MEMORANDUM AND ORDER

Defendant.

Plaintiff Drew J. Cole (Cole) ) has moved for an award of attorney’s fees
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The Acting
Commissioner of the Social Security Administration (Commissioner) opposes the
motion.
BACKGROUND
Cole applied for disability benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-433. The Commissioner denied the application. Cole sought
judicial review. Cole argued that the Commissioner’s decision should be reversed
because the administrative law judge (ALJ) had made four errors. (Doc. 12). Cole
argued that the ALJ had erred: 1) by failing to provide specific reasons for
discounting his testimony; 2) by failing to properly consider Listings 11.08C,
11.14B, and 1.06; 3) by improperly discounting the opinions of certain health care

providers; and 4) by failing to incorporate all of his impairments into the
hypothetical question presented to the vocational expert. (Doc. 18 at 12).
The Court rejected three of Cole’s arguments. (Doc. 18 at 19-35). The
Court concluded: 1) that the ALJ did not err with respect to her consideration of
Listings 11.08C, 11.14B, and 1.06; 2) that the ALJ did not err when she discounted
the opinions of some of Cole’s health care providers; and 3) that the ALJ did not
err when she presented her hypothetical question to the vocational expert. Id. The
Court agreed with Cole, however, that the ALJ had erred when she failed to
identify specific evidence in the record that supported her decision to discount
Cole’s testimony. (Doc. 18 at 18-19).
The Court reversed the Commissioner’s decision and remanded the case for
further administrative proceedings under sentence four of 42 U.S.C. § 405(g).
(Doc. 18 at 37). The Court directed the ALJ to revisit the issue of Cole’s
credibility on remand. (Doc. 18 at 19, 36-37). The Court directed the ALJ to
identify “the specific parts of Mr. Cole’s testimony [that] she found not credible”
and explain why the testimony was not credible “in light of the evidence and
medical records referenced in [her] decision.” (Doc. 18 at 18, 36-37). The Court
entered its judgment on June 6, 2018. (Doc. 19).
Cole filed the present motion on August 8, 2018. (Doc. 20). Cole seeks an

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award of attorney’s fees under EAJA in the amount of $10,036.29. (Doc. 20 at 4).
The Commissioner opposes Cole’s request for attorney’s fees. The
Commissioner argues that Cole’s request for attorney’s fees should not be denied
because: 1) the positions that she and the ALJ asserted were substantially justified,
and 2) the fee amount requested by Cole is unreasonable given Cole’s “limited
ratio of success.” (Doc. 21 at 2-3).
DISCUSSION
The EAJA provides that a prevailing party in an action for Social Security
benefits, other than the United States, is entitled to recover reasonable attorney’s
fees unless the court finds that the positions of both the ALJ and the Commissioner
were substantially justified, or that special circumstances make a fee award unjust.
28 U.S.C. § 2412(d)(1)(A); Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013).
A.

Prevailing Party

A claimant who receives a sentence four remand in a Social Security case is
a prevailing party for purposes of EAJA regardless of whether disability benefits
are ultimately awarded. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Flores
v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995).
Here, the Court remanded this matter to the ALJ for further proceedings
under 42 U.S.C. § 405(g). (Doc. 18 at 37). Cole is the prevailing party.

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B.

Substantial Justification

The government bears the burden of demonstrating that the positions of
both the ALJ and the Commissioner were substantially justified. Meier, 727 F.3d
at 870. The government must show that the ALJ was substantially justified in her
position in the underlying administrative proceeding, and that the Commissioner
was substantially justified in defending the ALJ’s decision in the proceedings
before this Court. Id.; Gutierrez v. Barnhart, 274 F.3d 1255, 1259-60 (9th Cir.
2001).
The test for whether a position is substantially justified “is one of
reasonableness.” Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir.
2005). Substantial justification means “justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). A
substantially justified position has a reasonable basis in both law and in fact.
Pierce, 487 U.S. at 565; Hardisty v. Astrue, 592 F.3d 1072, 1079 (9th Cir. 2010).
An ALJ’s position is not substantially justified where the ALJ violates
agency regulations, fails to acknowledge settled circuit case law, or fails to
describe the specific evidence that supports her decision. Downey v. Astrue, 2012
WL 1205824 *3 (E.D. Cal. April 11, 2012) (citing Gutierrez, 274 F.3d at 125960).

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Here, the ALJ’s decision was reversed because the ALJ made a fundamental
error. The ALJ erred when she discounted Cole’s testimony regarding his physical
symptoms without identifying the specific evidence in the record that supported
her determination. (Doc. 18 at 18-19). The ALJ had a duty to support her noncredibility determination with findings sufficiently specific to permit the court to
conclude that she had not discounted Cole’s testimony arbitrarily. Brown-Hunter
v. Colvin, 806 F.3d 487, 493-94 (9th Cir. 2015); Mangat v. Colvin, 2017 WL
1223881 *4 (S.D. Cal. Feb. 3, 2017). The ALJ made no specific findings with
regard to Cole’s testimony. This fundamental legal error by the ALJ was not
substantially justified. See Meier, 727 F.3d at 872-73. The Commissioner’s
defense of the ALJ’s error in this case likewise was not substantially justified. Id.
Cole is entitled to attorney’s fees under EAJA.
C.

Reasonableness of EAJA Award

EAJA provides for an award of “reasonable” attorney’s fees. 28 U.S.C. §
2412(d)(2)(A). The party seeking the award of EAJA fees bears the burden to
prove that the fee amount he requests is reasonable. Hensley v. Eckerhart, 461
U.S. 424, 437 (1983). The applicant must submit documentation in support of the
fee request. 28 U.S.C. § 2412(d)(1)(B).
The court’s inquiry generally entails determining “the number of hours

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reasonably expended on the litigation multiplied by a reasonable hourly rate.”
Hensley, 461 U.S. at 433. The court may reduce a fee award if the applicant’s
documentation of hours is inadequate, or the applicant claims “hours that are
excessive, redundant, or otherwise unnecessary.” Id. at 434. The reasonableness
of the total fee request is evaluated in light of a number of factors including the
time and labor required of counsel, the novelty and complexity of the issues
presented, fee awards in similar cases, and the results obtained. Hensley, 461 U.S.
at 430 n. 3.
Here, Cole seeks an award of attorney’s fees in the amount of $10,036.29.
(Doc. 20 at 4). Cole states that this fee amount represents 51 hours of work at the
rate of $196.79 per hour. Id. Cole has submitted a document entitled “Statement
of Hours” in support of his fee request. (Doc. 20 at 5-7). The Statement of Hours
describes the work Cole’s lawyer has performed in this case. Id.
The Commissioner does not challenge the hourly rate charged by Cole’s
lawyer. The Commissioner argues that the fee amount requested, however, is
excessive. The Commissioner argues that the fee amount should be reduced from
$10,036.29 to $2,500.00. The Commissioner argues that a reduction to $2,500.00
is appropriate because: 1) Cole had only limited success in this case given that he
was successful on only one of the four issues he raised; and 2) Cole’s lawyer has

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claimed an excessive amount of time with respect to some “administrative tasks.”
(Doc. 21 at 10-15).
a.

Extent of Cole’s Success

The Court applies a two-step analysis to determine whether a fee award
should be reduced for “limited success” in a disability case. Sorenson v. Mink, 239
F.3d 1140, 1147 (9th Cir. 2001) (citing Hensley, 461 U.S. at 434). First, the court
considers whether the claims upon which plaintiff failed to prevail are unrelated to
the claim upon which he succeeded. Sorenson, 239 F.3d at 1147. “Claims are
unrelated if they are entirely distinct and separate from the claims on which the
plaintiff prevailed.” Id. “Hours expended on unrelated, unsuccessful claims
should not be included in an award of fees.” Id.
Under the second step of the analysis, the court determines whether the
“plaintiff achieved a level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.” Sorenson, 239 F.3d at 1147. The court
focuses “on the significance of the overall relief obtained by the plaintiff in relation
to the hours reasonably expended on the litigation.” Id. A plaintiff’s attorney
“should recover a full[] compensation fee” when the “plaintiff has obtained
excellent results.” Id. “A plaintiff may obtain excellent results without receiving
all the relief requested.” Id. (citing Hensley, 461 U.S. at 435 n. 11).

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Here, all of Cole’s arguments relate to a single claim for relief — a claim for
Social Security disability benefits. See Lauser v. Colvin, 2015 WL 1884330 at *4
(N.D. Cal. April 23, 2015) (citing cases). Cole prevailed on that claim by
obtaining a reversal of the ALJ’s decision and a remand for further proceedings.
Id.
With respect to the second prong of the analysis, Cole presented four reasons
why this case should be remanded for further proceedings. The Court was
persuaded by one of Cole’s arguments. The Court’s rejection of Cole’s other
arguments does not support a reduction in the attorney hours claimed. The court
should not reduce a fee award “simply because the plaintiff failed to prevail on
every contention raised in the lawsuit.” Hensley, 461 U.S. at 435 (“Litigants in
good faith may raise alternative legal ground for a desired outcome, and the court’s
rejection of . . . certain grounds is not a sufficient reason for reducing a fee. The
result is what matters.”); see also Lauser, 2015 WL 1884330 at *4; Stevenson v.
Astrue, 2012 WL 5412704 at *7 (N.D. Cal. Nov. 6, 2012) (court refused to reduce
fee award in a Social Security case although court remanded the action for further
proceedings based upon only one of the arguments advanced by plaintiff). Cole
achieved the result he desired. See Stevenson, 2012 WL 5412704 at *7. The Court
determined that the ALJ had erred. Id. The Court will not reduce Cole’s fee award

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on grounds that he did not succeed on all of the arguments he raised.

b.

Claimed Attorney Hours

The Court has reviewed the Statement of Hours submitted by Cole. The
Court does not find any time entries that appear excessive, redundant, or otherwise
unnecessary.
ORDER
1.

Cole’s Application for an Award of EAJA Fees (Doc. 20) is

GRANTED.
2.

Cole is entitled to recover attorney’s fees under EAJA in the amount

of $10,036.29.
DATED this 6th day of November, 2018.

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