Cree v. Commissioner Social Security Administration
Filing
30
Opinion and Order. The Court GRANTS Plaintiff's Motion (# 26 ) for an award of attorneys' fees pursuant to EAJA and AWARDS fees to Plaintiff in the amount of $5,320.62. IT IS SO ORDERED. Signed on 5/31/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PAUL E. C.,1
Plaintiff,
3:16-cv-01719-BR
OPINION AND ORDER
v.
COMMISSIONER, Social Security
Administration,2
Defendant.
SARA L GABIN
14523 Westlake Dr.
Lake Oswego, OR 97035
(503) 620-3171
Attorney for Plaintiff
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties. The same
designation will be used to identify nongovernmental family
members named in this case.
2
The official title of the head of the Social Security
Administration (SSA) is the “Commissioner of Social Security.”
42 U.S.C. § 902(a)(1). A “public officer who sues or is sued in
an official capacity may be designated by official title rather
than by name.” Fed. R. Civ. P. 17(d). This Court, therefore,
refers to Defendant only as Commissioner of Social Security.
1 - OPINION AND ORDER
BILLY J. WILLIAMS
United States Attorney
RENATA GOWEI
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1021
MICHAEL W. PILE
Acting Regional Chief Counsel
JOSEPH J. LANGKAMER
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
(206) 615-2212
Attorneys for Defendant
BROWN, Senior Judge.
This matter comes before the Court on Plaintiff Paul E. C.’s
Motion (#26) for an Award of Attorney Fees Pursuant to the Equal
Access to Justice Act (EAJA) in which he seeks an award of
attorneys’ fees pursuant to 28 U.S.C. § 2412.
For the reasons that follow, the Court GRANTS Plaintiff’s
request for EAJA fees and AWARDS fees of $5,320.62.
BACKGROUND
On November 24, 2014, Plaintiff filed his application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act and alleged a disability onset date of
April 15, 2010.
reconsideration.
His application was denied initially and on
On March 11, 2016, an Administrative Law Judge
2 - OPINION AND ORDER
(ALJ) held a hearing on Plaintiff’s application.
On June 2, 2016, the ALJ issued a decision in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.
On August 3, 2016, the Appeals Council denied
Plaintiff’s request for review, and the ALJ’s decision became the
final decision of the Commissioner.
On August 15, 2016, Plaintiff filed his Complaint in this
Court seeking judicial review of the Commissioner’s final
decision.
On January 22, 2018, this Court issued an Opinion and Order
(#24), reversed the decision of the Commissioner, and remanded
the matter for further administrative proceedings pursuant to
sentence four of 42 U.S.C. § 405(g).
On April 13, 2018, Plaintiff, as the prevailing party, filed
a Motion (#26) for attorneys’ fees pursuant to EAJA.
Plaintiff
seeks attorneys’ fees in the amount of $5,320.62, which includes
fees for time spent preparing Plaintiff’s EAJA application.
STANDARDS
Under EAJA, 28 U.S.C. § 2412(d)(1)(A), a plaintiff may
recover attorneys' fees and costs in an action against the United
States or any agency or official of the United States if “(1) the
party seeking fees is the prevailing party; (2) the government
has not met its burden of showing that its positions were
3 - OPINION AND ORDER
substantially justified or that special circumstances make an
award unjust; and (3) the requested [attorneys'] fees and costs
are reasonable.”
United States v. Milner, 583 F.3d 1174, 1196
(9th Cir. 2009)(citing 28 U.S.C. § 2412(d)(1)(A)).
See also
Perez-Arellano v. Smith, 279 F.3d 791, 792 (9th Cir. 2002).
“To be a prevailing party, the party must have received an
enforceable judgment on the merits or a court-ordered consent
decree.”
2009).
United States v. Milner, 583 F.3d 1174, 1196 (9th Cir.
"Enforceable judgments and court-ordered consent decrees
create 'the material alteration of the legal relationship of the
parties' necessary to permit an award of attorney's fees."
Buckhannon Bd. and Care Home, Inc. v. W. Va. Dep't of Health and
Human Res., 532 U.S. 598, 604 (2001)(internal citation omitted).
A prevailing plaintiff is not entitled to attorneys’ fees
under EAJA when the Commissioner’s positions were substantially
justified.
Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008).
See also Li v. Keisler, 505 F.3d 913, 918 (9th Cir. 2007).
The
Commissioner’s positions are substantially justified if they are
reasonably based in both law and fact.
Hardistry v. Astrue, 592
F.3d 1072, 1079 (9th Cir. 2010)(citing Pierce v. Underwood, 487,
U.S. 552, 556 n.2 (1988)).
The Commissioner’s failure to prevail
on the merits “does not raise a presumption that his position was
not substantially justified.”
Gonzales v. Free Speech Coalition,
408 F.3d 613, 620 (9th Cir. 2005)(citing Kali v. Bowen, 854 F.2d
4 - OPINION AND ORDER
329, 332 (9th Cir. 1988)).
When the Commissioner opposes a claimant's fee request, she
bears the burden to establish that her positions at each stage of
the proceeding were "substantially justified."
149 F.3d 1051, 1053 (9th Cir. 1998).
Corbin v. Apfel,
See also U.S. v. Real
Property at 2659 Roundhill Drive, Alamo, Cal., 283 F.3d 1146,
1151 (9th Cir. 2002).
To prevail, therefore, the Commissioner
must establish the positions taken in opposition to the
claimant's efforts to obtain Social Security benefits both in the
proceedings before this Court and in the underlying
administrative action were substantially justified.
See Lewis,
281 F.3d at 1085-86.
The Commissioner's position must be “‘justified in substance
or in the main,’—that is, justified to a degree that could
satisfy a reasonable person.”
Gonzales, 408 F.3d at 618 (citing
Pierce v. Underwood, 487 U.S. 552, 565 (1988)).
“Put another
way, substantially justified means there is a dispute over
which ‘reasonable minds could differ.’”
Gonzales, 408 F.3d at
618 (citing League of Women Voters of Cal. v. FCC, 798 F.2d 1255,
1257 (9th Cir. 1986)).
DISCUSSION
Plaintiff contends he is entitled to attorneys’ fees because
the Commissioner’s positions were not substantially justified and
5 - OPINION AND ORDER
the ALJ’s errors constitute “unreasonable resistance” to awarding
Plaintiff disability benefits.
The Commissioner, however, contends it’s position was
substantially justified because the ALJ offered valid reasons
supported by the record for his conclusions.
I.
The government's position was not substantially justified.
As noted, the question whether the government’s position was
substantially justified applies both at the litigation stage and
in the underlying agency action (Hardisty v. Astrue, 592 F.3d
1072, 1077 (9th Cir. 2010)) and the test for whether the
government’s position was substantially justified is one of
“reasonableness.”
Gonzales, 408 F.3d at 618.
The ALJ concluded Plaintiff was not disabled on the grounds
that (1) Plaintiff’s subjective testimony concerning the
intensity, persistence, and limiting effects of his alleged
symptoms was “not entirely consistent with the medical evidence
and other evidence in the record"; (2) the lay-witness opinion of
Mary Schalinski, a treating therapist, “was at odds with various
treatment records”; and (3) there was not any conflict between
the ALJ’s determination of Plaintiff’s RFC and the lay-witness
opinion of David Hitt, a vocational rehabilitation counselor.
Plaintiff, however, contended each of these findings
constituted error by the ALJ.
As the record reflects, the Court
agreed with Plaintiff and concluded the ALJ erred when he
6 - OPINION AND ORDER
rejected Plaintiff’s testimony regarding Plaintiff’s mentalhealth symptoms.
The Court noted the ALJ’s summary of the
evidentiary record was "almost bereft of meaningful analysis”
regarding Plaintiff’s testimony and the ALJ failed to provide
legally sufficient reasons for rejecting Plaintiff’s allegations
regarding his mental-health symptoms.
The Court also concluded
the ALJ erred when he rejected the opinions of the lay-witnesses
and failed to provide legally sufficient reasons supported by
substantial evidence for doing so.
In Thangaraja v. Gonzales the Ninth Circuit concluded the
district court’s “holding that the agency’s decision . . . was
unsupported by substantial evidence is . . . a strong indication
that the ‘position of the United States’ . . . was not
substantially justified.”
428 F.3d 870, 874 (9th Cir. 2005).
“Indeed, it will be only a ‘decidedly unusual case in which there
is substantial justification under the EAJA even though the
agency’s decision was reversed as lacking in reasonable,
substantial[,] and probative evidence in the record.’”
Id.
(quoting Al-Harabi v. I.N.S., 284 F.3d 1080, 1085 (9th Cir.
2002)).
In Meier v. Colvin the Ninth Circuit concluded the ALJ
failed to offer specific and legitimate reasons supported by
substantial evidence for rejecting the opinion of a treating
physician that the claimant was incapable of working, and the ALJ
7 - OPINION AND ORDER
failed to offer clear and convincing reasons supported by
substantial evidence for discounting claimant's subjective pain
testimony.
The court, therefore, held the decision by the ALJ as
well as the government’s position on appeal to the district court
were not “substantially justified” and the plaintiff was entitled
to an award of attorneys’ fees pursuant to EAJA.
727 F.3d 867,
872-73 (9th Cir. 2013).
Although the Commissioner here asserts the ALJ provided
valid reasons for discounting Plaintiff’s subjective complaints
and for rejecting the opinions of the treating providers, this
Court already concluded the ALJ failed to do so.
On this record the Court concludes because the
Commissioner’s position was not supported by substantial
evidence, the government’s position was not substantially
justified.
Accordingly, the Court concludes Plaintiff is
entitled to an award of attorneys’ fees pursuant to EAJA.
II.
The amount of attorneys' fees Plaintiff seeks is reasonable.
Plaintiff seeks 2.9 hours at an hourly rate of $192.68 for
work performed in 2016 and 24.3 hours at an hourly rate of
$195.95 for work performed in 2017.
The government does not
object to these hourly rates, and the Court notes the rates are
within the statutory cap on hourly rates provided for under the
EAJA.
Although the government has not challenged the
8 - OPINION AND ORDER
reasonableness of the fees sought by Plaintiff, the Court,
nonetheless, must determine whether the requested attorneys' fees
are reasonable.
28 U.S.C. § 2412(d)(1)(A).
See also Perez-
Arellano v. Smith, 279 F.3d 791, 792 (9th Cir. 2002).
The Court
notes other courts have concluded a similar number of hours is
reasonable.
See, e.g., Johnson v. Astrue, No. 07-CV-2387, 2008
WL 3984599, at *2 (N.D. Cal. Aug. 27, 2008)(57 hours reasonable);
Wirth v. Barnhart, 325 F. Supp. 2d 911, 913 (E.D. Wis. 2004)
(61.1 hours reasonable).
See also Patterson v. Apfel, 99 F.
Supp. 2d 1212, 1214 n.2 (C.D. Cal. 2000)(citing numerous cases in
which district courts have awarded attorneys' fees for 20-50
hours of work performed in challenging denials of Social Security
benefits).
On this record the Court concludes the amount of time spent
by Plaintiff’s counsel in the handling of this matter is
appropriate and the fees sought are reasonable.
CONCLUSION
For these reasons, the Court GRANTS Plaintiff’s Motion (#26)
9 - OPINION AND ORDER
for an award of attorneys’ fees pursuant to EAJA and AWARDS fees
to Plaintiff in the amount of $5,320.62.
IT IS SO ORDERED.
DATED this 31st day of May, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
10 - OPINION AND ORDER
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