Davis v. Commissioner of Social Security Administration
Filing
27
OPINION and ORDER - For the reasons stated, Claimant's Motion 22 for EAJA Fees is GRANTED in part and the court awards Claimant attorney fees in the amount of $1,346.61. Said fees shall be made payable to Claimants counsel.IT IS SO ORDERED. Dated this 8th day of August, 2012, by U.S. Magistrate Judge John V. Acosta. (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JANICE DAVIS,
Civ. No. 09-649-AC
Plaintiff,
OPINION AND
ORDER
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
___________________________________
ACOSTA, Magistrate Judge:
Introduction
Claimant Janice Davis (“Claimant”), having prevailed in her challenge to the Commissioner
of Social Security’s (“the Commissioner”) decision regarding her disability claim, moves for an
award of attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.1 The
Commissioner opposes the motion on the ground that its position was substantially justified. For
1
On December 28, 2011, the court granted Davis’s unopposed motion for leave to file an
untimely EAJA application. (Docket #21.)
OPINION AND ORDER
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the reasons below stated, the court grants Claimant’s motion and awards Claimant EAJA fees in the
amount of $1,346.61.
Legal Standard
The Social Security Act provides:
Except as otherwise specifically provided by statute, a court shall award to a
prevailing party other than the United States fees and other expenses, in addition to
any costs awarded pursuant to subsection (a), incurred by that party in any civil
action (other than cases sounding in tort) . . . brought by or against the United States
in any court having jurisdiction of that 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) (2011). The Supreme Court has interpreted “substantially justified” to
mean “‘justified in substance or in the main’ – that is, justified to a degree that could satisfy a
reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). This is indistinguishable from
the standard adopted by the Ninth Circuit which requires a reasonable basis in both law and fact.
Id. The Commissioner bears the burden of proof and “must prove that [his] position had a
reasonable basis in both law and fact.” Yang v. Shalala, 22 F.3d 213, 217 (9th Cir. 1994) (citing
Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
The mere fact that the government did not prevail does not raise the presumption that it
lacked substantial justification. Kali, 854 F.2d at 332. The court should consider the totality of the
circumstances and, in doing so, “must look both to the position asserted by the government in the
trial court as well as the nature of the underlying government action at issue.” League of Women
Voters of California, 798 F.2d at 1258. The reasonableness of the government action may be
informed by relevant precedent. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988) (“Perhaps the
most important of these extraneous circumstances will be the existence of precedent construing
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similar statutes or similar facts.” (citing Pierce, 487 U.S. at 569)).
Background
Claimant filed for Disability Insurance Benefits and Supplemental Security Income (“SSI”)
benefits on June 22, 1999. The claim was denied initially and on reconsideration. Claimant
appeared on March 13, 2001, the date the hearing was initially scheduled, and was granted a
postponement so that she could obtain representation. On June 20, 2001, a hearing was held before
an Administrative Law Judge (“ALJ”), who issued a decision on July 26, 2001, finding Claimant not
disabled.
Claimant again filed for SSI benefits on July 24, 2003, alleging a disability onset date of
February 1, 2001. (Tr. 52-53.) The claim was denied initially and on reconsideration. Claimant
filed a request for hearing, and a hearing was held on January 22, 2007. A decision issued on June
14, 2007, found Claimant disabled between March 1, 2004, and November 20, 2006. Claimant
requested review by the Appeals Council. This request was denied, making the ALJ’s decision the
final decision of the Commissioner. A request for review was filed in this court on June 10, 2009.
The court reversed the ALJ’s decision for erroneously applying Medical-Vocational
Guidelines (“the grids”) and, as a result, failing to consult a vocational expert. As the court noted,
the law is clear that where a claimant’s impairments are exclusively non-exertional, the grids do not
apply. See Polny v. Bowen, 864 F.2d 661, 663-664 (9th Cir. 1988) (“But where, as here, a claimant’s
nonexertional limitations are in themselves enough to limit his range of work, the grids do not apply,
and the testimony of a vocational expert is required to identify specific jobs within the claimant’s
abilities.”). Thus, the ALJ’s error is one of law.
The court affirmed the rest of the ALJ’s findings, however. It found that the ALJ’s rejection
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of the findings of Dr. LeBray, Dr. Pitchford, Gorman, and Dr. Balasubramanian was not erroneous,
as the ALJ met the applicable standards for doing so in each case. The court also affirmed the ALJ’s
finding as to Claimant’s residual functional capacity (“RFC”) as supported by substantial record
evidence. Finally, the court affirmed the ALJ’s finding that Claimant was only partially credible as
properly based on clear and convincing reasons.
Discussion
The parties do not dispute that Claimant, having won reversal of the ALJ’s decision, is the
prevailing party. The parties do dispute whether the Commissioner’s position in opposing
Claimant’s request for review was substantially justified. The Commissioner argues that its position
was reasonable in law and fact and, therefore, substantially justified. Claimant argues that she
demonstrated that the ALJ committed reversible legal error and that in defending this legal error the
Government’s position was not substantially justified. The Commissioner further argues that, to the
extent the court finds its position not substantially justified, that the court should apportion fees in
recognition of the limited nature of Claimant’s success.
I.
Substantial Justification
In the Ninth Circuit, the law is clear: “Where a claimant suffers only non-exertional
limitations, the grids are inappropriate, and the ALJ must rely on other evidence.” Lounsburry v.
Barnhart, 468 F.3d 1111, 1115 (9th Cir. 2006) (citing Cooper v. Sullivan, 880 F.2d 1152, 1155 (9th
Cir. 1989)); see also Tackett v. Apfel, 180 F.3d 1094, 1104 (9th Cir. 1999) (where “non-exertional
limitations ‘significantly limit the range of work’ [a claimant] can perform, mechanical application
of the grids was inappropriate.” (citing Derosiers v. Secretary of Health and Human Services, 846
F.2d 573, 577-578 (9th Cir. 1988)); see also Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988)
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(“When a claimant’s non-exertional limitations are ‘sufficiently severe’ so as to significantly limit
the range of work permitted by the claimant’s exertional limitations, the grids are inapplicable”)
(citing Derosiers)). Here, Claimant’s limitations were exclusively non-exertional and it was not
reasonable for the ALJ to apply the grids and also not reasonable for the Commissioner to oppose
reversal on this basis. Accordingly, the Commissioner’s position was not substantially justified.
The Commissioner cites Williamson v. Astrue, No. 3:09-CV-6156-BR, 2012 WL 75036, at
*2 (D. Or. Jan. 10, 2012), for the proposition that remand on a narrow issue will not render the
Commissioner’s position unjustified. In that case, Judge Brown affirmed the ALJ’s decision denying
benefits and, on appeal, the Ninth Circuit affirmed much of the district court ruling, but remanded
the case to the ALJ “to reevaluate Plaintiff’s RFC and to include Plaintiff’s limitations in
concentration, persistence, and pace.” Id. at *3. In evaluating the claimant’s EAJA petition, the
court agreed with the Commissioner that the Ninth Circuit substantially affirmed its opinion and, in
doing so, upheld the majority of the ALJ’s decision. Thus, because the “Ninth Circuit remanded as
to a limited issue and for a specific purpose[,]” the court concluded that the Commissioner’s position
was substantially justified and denied the motion for attorney fees under the EAJA. Id.
The Ninth Circuit has resisted, however, taking a broad view of the disability proceedings
to determine whether the Commissioner’s position was substantially justified. In Lewis v. Barnhart,
281 F.3d 1081 (9th Cir. 2002), the Ninth Circuit clarified the scope of the government’s position that
must be “substantially justified” to avoid an award of attorney fees, citing its decisions in Flores v.
Shalala, 49 F.3d 562 (9th Cir. 1995) and Corbin v. Apfel, 149 F.3d 1051 (9th Cir. 1998). The Lewis
court rejected an analysis of “substantial justification” based on whether the government’s position
was reasonable in light of the ultimate disability determination and focused its attention on the
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reasonableness of the basis for remand. In Flores, the court held that the claimant “was entitled to
attorneys’ fees unless the Secretary showed that her position with respect to the issue on which the
court based its remand was ‘substantially justified.’” 49 F.3d at 569. Corbin similarly required the
court to “focus on the reasonableness of the Commissioner’s position in the remand proceedings
instead of the reasonableness of the Commissioner’s position in the full range of proceedings related
to the disability determination.” Lewis, 281 F.3d at 1085. Furthermore, the Ninth Circuit has
observed that review involves examining both the reasonableness of the ALJ’s position and the
position taken by the Commissioner in the subsequent litigation: “EAJA defines the government’s
‘position’ as both the position of the government taken in the litigation and ‘the action or failure to
act by the agency upon which the civil action is based.’” Thomas v. Peterson, 841 F.2d 332, 336
(9th Cir. 1988) (quoting 28 U.S.C. § 2412(d)(2)(D)).
Here, the legal issue upon which remand was based is clear and the ALJ unquestionably
erred. In arguing to the contrary, the government’s position was not substantially justified and an
award of EAJA fees is appropriate.
II.
Apportionment of Fees
The Commissioner argues that the amount of fees awarded should be reduced to account for
Claimant’s limited success. The framework for this analysis is set forth in Hensley v. Eckerhart, 461
U.S. 424 (1983), wherein the Supreme Court considered whether attorney fees awarded under 42
U.S.C. § 1988 should be reduced where the plaintiff had only limited success. This approach has
since been extended to fees available under the EAJA. See Commissioner v. Jean, 496 U.S. 154,
160-161 (1990) (“As we have held in Hensley v. Eckerhart, 461 U.S. 424 (1983), the ‘prevailing
party’ requirement is ‘a generous formulation that brings the plaintiff only across the statutory
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threshold. It remains for the district court to determine what fee is “reasonable.”’ Similarly, once
a private litigant has met the multiple conditions for eligibility for EAJA fees, the district court’s task
of determining what fee is reasonable is essentially the same as that described in Hensley.” (internal
citations omitted)).
In Hensley, the court acknowledged that fees should be reduced where the plaintiff has
pursued unsuccessful claims unrelated to the successful claim upon which the award of fees is
premised. Id. at 434-435. However, where the successful and unsuccessful claims are related, the
court should focus on the “significance of the overall relief obtained by the plaintiff in relation to the
hours reasonably expended on the litigation.” Id. at 435. The Court described the circumstances that
would justify awarding fees in full, despite only partial success:
Where a plaintiff has obtained excellent results, his attorney should recover a fully
compensatory fee. Normally this will encompass all hours reasonably expended on
the litigation, and indeed in some cases of exceptional success an enhanced award
may be justified. In these circumstances the fee should not be reduced simply
because the plaintiff failed to prevail on every contention raised in the lawsuit.
Litigants in good faith may raise alternative legal grounds for a desired outcome, and
the court’s rejection of or failure to reach certain grounds is not a sufficient reason
for reducing a fee. The result is what matters.
Id.
The Court explained that this may not always be the case and that the district court retains
the discretion to reduce fee awards for related unsuccessful claims where it simply is not reasonable
under the particular circumstances: “This will be true even where the plaintiff’s claims were
interrelated, nonfrivolous, and raised in good faith. Congress has not authorized an award of fees
whenever it was reasonable for a plaintiff to bring a lawsuit or whenever conscientious counsel tried
the case with devotion and skill. Again, the most critical factor is the degree of success obtained.”
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Id. at 436.
Determining reasonableness in a social security context differs from evaluating fee requests
in other contexts because there is a single claim, for disability benefits, but a claimant may assert
numerous errors by the ALJ in challenging denial of that claim. This raises the question: should the
district court parse the underlying claim and award fees only for those arguments upon which the
claimant prevailed? Courts have taken different positions on this issue, as highlighted by two
decisions from this district.
In Dschaak v. Astrue, 3:10-CV-1010-PK, 2012 U.S. Dist. LEXIS 50826, at*1 (D. Or. Mar.
19, 2012), the district court reversed and remanded a disability claim for further proceedings “to
include an additional consultative examination[.]” In evaluating a subsequent petition for EAJA
fees, the court held that the Commissioner’s position was not substantially justified where several
of the ALJ’s conclusions had no reasonable basis in fact. In determining an award of reasonable
attorney fees, the court cited Hensley for the general proposition that a reasonable fee award will not
include hours unreasonably expended: “It is the fee claimant’s burden to demonstrate that the
number of hours spent was ‘reasonably necessary’ to the litigation and that counsel made ‘a good
faith effort to exclude from [the] fee request hours that are excessive, redundant, or otherwise
unnecessary.’” Dschaak, at *7. After reviewing Dschaak’s fee petition, the court concluded that the
hours expended on the case were reasonably necessary and granted the fee petition in full. Notably,
the court did not address whether Dschaak was completely successful, though it did cite Hensley and
its restriction of fees where a party has only limited success.
In Jackson v. Astrue, No. CV 09-989-MO, 2011 U.S. Dist. LEXIS 73499 (D. Or. June 28,
2011), the court took a different approach. There, the court identified four bases upon which the
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claimant asserted error by the ALJ. The claimant was successful on only one basis, and the court
awarded fees only for assignments of error sufficiently related to the successful basis, ultimately
reducing the requested fees by twenty-five percent.
The court agrees with the approach taken in Jackson as it is more closely aligned with the
dictate of Hensley which differentiates between successful claims and claims that are both
unsuccessful and unrelated to the claims upon which the plaintiff prevailed. “Claims are related if
they have a ‘common core of facts’ or are ‘based on related legal theories.’” Jackson, at *12
(quoting Hensley, at 435). Here, the ALJ erred in applying the grids to Claimant’s non-exertional
impairments and the court remanded the claim for reconsideration on that basis. Even so, the court
found no error in the balance of the ALJ’s findings, and affirmed the ALJ’s analysis of the
physicians’ opinions, formulation of Claimant’s RFC, and evaluation of Claimant’s credibility. The
ALJ’s technical error in applying the grids to Claimant’s exclusively non-exertional impairments was
unrelated to the more discretionary determinations upheld by this court as it was purely legal and did
not rest on the evidentiary record as did the other assignments of error. As such, the court must
apportion the fees awarded Claimant consistent with Hensley and exclude fees attributable to the
unsuccessful and unrelated arguments proposed by Claimant.2
Consistent with the approach taken in Jackson, the court observes that Claimant asserted five
errors by the ALJ and prevailed on only one. Having determined that Claimant’s unsuccessful
2
In Jackson, the court found that two of Claimant’s three unsuccessful arguments were
related to the one successful argument and, thus, reduced the fee by twenty-five percent. The court’s
ensuing discussion as to whether the fees sought for the successful and related arguments should be
awarded in full is separate from its disallowance of fees for unsuccessful and unrelated claims. The
court was explicit: “Thus, I find that this unsuccessful claim is not related to plaintiff’s prevailing
claim, and the fee award may not include time expended on this claim.” Id. at 14 (emphasis added).
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arguments were uniformly unrelated to the successful argument, the court awards fees for only that
ground upon which Claimant prevailed. Accordingly, the fees available to Claimant are reduced to
one-fifth the amount sought.
This apportionment is case-specific and should not be interpreted as an endorsement of
reducing fees by simply calculating the percentage of all claims represented by the successful claims,
then awarding that percentage of the fees requested. Here, the ALJ’s technical error in applying the
grids was not the primary issue that overshadowed all others raised by Claimant. Instead, it was one
of five issues Claimant presented with equal importance and effort to that used to advance the other
four alleged errors. Thus, on this record, an award of twenty percent of the total requested is
appropriate.
III.
Reasonableness of Hours and Rate
The Commissioner does not object to the amount of fees sought, beyond arguing for their
apportionment. Even so, the court must independently analyze the fee petition for reasonableness.
Dschaak, 2012 U.S. Dist. LEXIS at *7 (citing Gates v. Deukmejian, 987 F.2d 1392, 1400-1401 (9th
Cir. 1992)). “There is some consensus among the district courts that 20-40 hours is a reasonable
amount of time to spend on a social security case that does not present particular difficulty.” Harden
v. Commissioner of Social Security, 497 F. Supp. 2d 1214, 1215 (D. Or. 2007). Here, Claimant’s
attorney seeks fees for thirty-three hours of work in the underlying case and preparation of the EAJA
petition, the preparation of which is also compensable. See Kelly v. Bowen, 862 F.2d 1333, 1334
(8th Cir. 1988) (“We think the time spent preparing the EAJA fee application should be compensable
under the EAJA because it is ‘necessary for the preparation of the party’s case.’” (citing 28 U.S.C.
§ 2412(d)(2)(A))). For these thirty-three hours, Claimant’s attorney seeks reimbursement at the rate
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of $172.85 per hour. By the court’s calculation,3 the hourly rate for the period of time Claimant’s
attorney was preparing the challenge to the denial of benefits is between $171.19 and $180.58.
Claimant also seeks reimbursement for the subsequent 5.7 hours spent defending its motion
for EAJA fees, which are also compensable. See Commissioner v. Jean, 496 U.S. 154, 162 (1990)
(“We find no textual or logical argument for treating so differently a party’s preparation of a fee
application and its ensuing efforts to support that same application.”) At the time this work was
performed, the hourly rate was $181.97. For these hours, Claimant seeks a rate of $180.53 per hour.
Having reviewed the itemized invoices, the court considers the time expended and rates
sought reasonable. As such, the court approves Claimant’s request for attorney fees pursuant to the
EAJA in an amount equal to one-fifth of the fees requested.
Conclusion
For the reasons stated, Claimant’s Motion for EAJA Fees is GRANTED in part and the court
awards Claimant attorney fees in the amount of $1,346.61. Said fees shall be made payable to
Claimant’s counsel.
IT IS SO ORDERED.
DATED this 8th day of August, 2012.
/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge
3
“In considering a reasonable rate for attorneys’ fees, an increase in the statutory rate of $125
may be justified to account for inflation. The COLA adjustment to the statutory cap is computed by
multiplying the cap by the consumer price index for urban consumers for the year in which the fees
were earned, then dividing by the consumer price index figure on the date that the cap was imposed
by Congress.” Hollingshead v. Astrue, 2008 U.S. Dist. LEXIS 120697 (E.D. Cal. June 18, 2008)
(citing Roman-Sepulveda v. INS, 863 F.2d 1458, 146301464 (9th Cir. 1988); Russell v. Sullivan, 930
F.2d 1443 (9th Cir. 1991)).
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