Costa v. Commissioner of Social Security
Filing
29
OPINION & ORDER: Plaintiff's motion for an award of attorney's fees and costs under EAJA 24 is granted. Plaintiff is awarded $14,809.49 in fees and $495.41 in costs for a total award of $15,304.90. See 6-page opinion & order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROSEMARY COSTA,
Plaintiff,
No. 03:10-cv-00786-JE
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
Tim Wilborn
WILBORN LAW OFFICE, P.C.
P.O. Box 370578
Las Vegas, Nevada 89137
Attorney for Plaintiff
Amanda Marshall
UNITED STATES ATTORNEY
District of Oregon
Adrian L. Brown
ASSISTANT UNITED STATES ATTORNEY
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201-2902
1 - OPINION & ORDER
OPINION & ORDER
Gerald J. Hill
SPECIAL ASSISTANT UNITED STATES ATTORNEY
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Rosemary Costa brought this action seeking judicial review of the
Commissioner's final decision to deny disability insurance benefits (DIB). In a January 31, 2012
Findings and Recommendation, Judge Jelderks recommended that the Commissioner's decision
be affirmed. I adopted the Findings and Recommendation in a March 21, 2012 Order. A
Judgment was entered on that same day.
Plaintiff appealed to the Ninth Circuit which, in an unpublished July 30, 2013
Memorandum, affirmed in part, vacated in part, and remanded in part. Plaintiff's counsel
presently seeks an award of $14,809.49 in fees under the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (EAJA), and costs in the amount of $495.41. Defendant opposes the fee request, arguing
that the government's position was substantially justified. Defendant also challenges the
requested fees as unreasonable. Because I agree with Plaintiff that the government's position was
not substantially justified and that the requested fees are reasonable, I grant Plaintiff's motion.
EAJA requires an award of attorney's fees to prevailing parties in civil actions against the
United States unless the position of the United States was substantially justified. 28 U.S.C. §
2412(d)(1)(A). There is no dispute that Plaintiff was the prevailing party on appeal.
The burden is on the Commissioner to show that his position was substantially justified.
2 - OPINION & ORDER
Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010). Although "Congress did not intend
fee shifting [under EAJA] to be mandatory[,]" "EAJA creates a presumption that fees will be
awarded to prevailing parties." Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). However,
the "government's failure to prevail does not raise a presumption that its position was not
substantially justified." Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). To establish that its
position was substantially justified, the government must show that the underlying decision by
the Administrative Law Judge (ALJ) had "a reasonable basis both in law and fact." Pierce v.
Underwood, 487 U.S. 552, 565 (1988); Renee v. Duncan, 686 F.3d 1002, 1017 (9th Cir. 2012).
The question here is not whether Defendant was justified in contending that Plaintiff was not
disabled but whether Defendant's decision to defend on appeal the error by the ALJ as found by
the Ninth Circuit was substantially justified. Shafer v. Astrue, 518 F.3d 1067, 1071 & n.6 (9th
Cir. 2008).
In seeking reversal of my Order affirming the decision of the Commissioner to deny
Plaintiff DIB, Plaintiff raised four arguments and prevailed on one of them. That argument
entailed reviewing the ALJ's step four determination that Plaintiff could perform her past relevant
work. In reversing, the Ninth Circuit explained that the record was ambiguous regarding the
nature of Plaintiff's past relevant work and that the ALJ failed to make relevant findings as to
what portion of Plaintiff's previous work was light or medium. As a result, the Ninth Circuit
could not actually determine whether the ALJ's residual functional capacity classification was
supported by substantial evidence. Accordingly, it remanded the case to the Commissioner for
further proceedings.
I disagree with Defendant that the ALJ's step four finding and Defendant's defense of that
3 - OPINION & ORDER
finding had a reasonable basis in law and fact. The essence of the Ninth Circuit's decision is that
the ALJ's step four finding was not reasonably based on the record, meaning it did not have a
reasonable basis in fact. That the Ninth Circuit did not expressly state that the ALJ erred in
finding Plaintiff able to perform her past relevant work as generally performed does not alter its
holding that the ALJ's step four determination was not supported by the record absent additional
findings by the ALJ. Accordingly, the government's position lacked a reasonable basis in fact,
making it not substantially justified.
As to the amount of fees requested, the district court possesses "considerable discretion"
in determining the reasonableness of a fee award. Webb v. Ada Cnty., 195 F.3d 524, 527 (9th
Cir. 1999); see also Keyser v. Astrue, No. 01:08-cv-01268-CL, 2012 WL 78461, at *3 (D. Or.
Jan. 10, 2012) (district court exercises discretion in awarding fees under EAJA). The fee award
is a combination of the number of hours reasonably worked, multiplied by a reasonable hourly
rate.
I reject Defendant's challenges to Plaintiff's requested fees for time spent on two motions
for extension of time, on one motion made to the Ninth Circuit for submission on the briefs, and
on preparing a memorandum regarding the case strategy after remand by the Ninth Circuit and
communicating with the post-remand attorney. Motions for extension of time are common in
social security cases, at least at the district court level. The motion submitted to the district court
on February 9, 2011 was unopposed and was granted. The motion for submission on the briefs
appears to have been made in a good faith attempt to save time and expense. The fact that it was
denied does not make it unreasonable. And, the total of 1.1 hours spent after the Ninth Circuit
remanded the case both in assessing the strategy for going forward and in communicating to
4 - OPINION & ORDER
remand counsel is also not unreasonable.
I further decline to adjust the fees as a result of Plaintiff prevailing on only one of four
arguments made to the Ninth Circuit and obtaining a remand rather than an outright award of
benefits. The ultimate issue in Plaintiff's appeal of the Commissioner's decision was whether the
ALJ erred in denying Plaintiff DIB. Although Plaintiff did not convince the Ninth Circuit of her
position on three of her four arguments, Plaintiff obtained a significant victory when the Ninth
Circuit concluded that the record did not support the ALJ's step four determination. At this
point, she has achieved a determination that the ALJ erred in denying her DIB on the current
record absent additional findings. That is sufficient to allow the award for all of the time
expended by Plaintiff's counsel.
As to the calculation of the award, the parties agree that based on the EAJA formula1, the
correct hourly rates are as follows: (1) $175.06 for time spent in 2010; (2) $180.59 for time
spent in 2011; (3) $184.32 for time spent in 2012; and (4) $186.69 for time spent in 2012. As
shown in Plaintiff's "Schedule A," Plaintiff's counsel spent 6.9 hours in 2010, 26.6 hours in 2011,
25.55 hours in 2012, and 21.9 hours in 2013. The total fee award is $14,809.49.
Defendant does not oppose the requested costs of $70.25 in postage and $425.16 in air
fare and hotel charges incurred in attending oral argument. These costs are reasonable and
1
EAJA sets a ceiling of $125 per hour "unless the court determines that an increase in
the cost of living . . . justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). To adjust for the cost of
living, the Ninth Circuit applies the consumer price index for all urban consumers (CPI-U).
Jones v. Espy, 10 F.3d 690, 692-93 (9th Cir. 1993) (CPI-U for all items, not just legal services,
applies). The EAJA formula multiples the EAJA ceiling of $125/hour by the CPI-U for current
month/155.7 (the CPI-U for March 1996, the month Congress adopted current $125/hour
ceiling). Ramon-Sepulveda v. INS, 863 F.2d 1458, 1463 n.4 (9th Cir. 1988) (explaining
formula).
5 - OPINION & ORDER
properly awarded under EAJA. 28 U.S.C. § 2412(a)(1) (EAJA allows prevailing party to recover
costs as enumerated in 28 U.S.C. § 1920); 28 U.S.C. §§ 2412(b), 2412(d)(1)(A) (EAJA entitles
prevailing party to other "expenses" in addition to the costs allowed under subsection (a)(1)); Int'l
Woodworkers Of Am. v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985) (upholding EAJA award
including costs for telephone calls, postage, air courier, and attorney travel expenses); League of
Wilderness Defenders-Blue Mountains Biodiversity Project v. Smith, 491 F. Supp. 2d 980, 989
(D. Or. 2007) (EAJA award included filing fee, travel expenses, and postage).
CONCLUSION
Plaintiff's motion for an award of attorney's fees and costs under EAJA [24] is granted.
Plaintiff is awarded $14,809.49 in fees and $495.41 in costs for a total award of $15,304.90.
IT IS SO ORDERED.
Dated this
day of
Marco A. Hernandez
United States District Judge
6 - OPINION & ORDER
, 2013
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