Carr v. Commissioner, Social Security Administration

Filing 35

OPINION & ORDER: Plaintiff's Motion for Attorney Fees and Costs Pursuant to EAJA 29 is Granted in Part. Plaintiff is awarded fees in the amount of $6,071.47. Signed on 12/29/14 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BILL D. CARR,

Plaintiff,

v.

6: 13-cv-00521-PK

OPINION AND ORDER

CAROLYN COLVIN, Commissioner
of Social Security,

Defendant.

PAPAK, Magistrate Judge:
Plaintiff Bill D. CmT seeks attorney fees and costs pursuant to the Equal Access to Justice
Act ("EAJA"), 28 U.S.C. § 2412. Carr's request (#29) includes fees related to his appeal to this
Court conducted in various stages from March 30, 2013, to July 7, 2014. The Commissioner of

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Social Security ("Commissioner") does not contest that CatT is entitled to EAJA fees. Instead,
the Commissioner maintains that the amount Can· requests should be reduced as it is
umeasonable in light of his unwillingness to accept an offer to remand this case, and his alleged
failure to subsequently obtain greater relief than was offered to him. For the reasons set fotih
below, Carr's motion is granted in pmi and reduced by the amount requested by the
Commissioner.

PROCEDURAL BACKGROUND
Can protectively filed an application for benefits on April 9, 2009, alleging an onset date
of April 30, 1998. The application was denied initially and upon reconsideration. Carr requested
a hearing, which was held on June 9, 2009, before an Administrative Law Judge ("ALJ''). The
ALJ issued a decision finding Plaintiff not disabled on August 19, 2011. After Carr presented
the Social Security Appeals Council with additional medical evidence, the Council denied
Plaintiffs request for review, rendering the ALJ's decision the final decision of the
Commissioner.
Carr sought review of the ALJ's decision in this comi on March 26, 2013. On January
31, 2014, the Commissioner filed a brief Requesting Remand to the Agency (#25), to which Carr
replied in opposition on February 12, 2014.
On July 11, 2014, this comt remanded Can"s case for further proceedings. See Carr v.

Colvin, 2014 WL 3475056 (D. Or. July 11, 2014). This court issued the remand because it found
that the Appeals Council erred in rejecting Carr's newly presented medical evidence when
denying review of his claim. Can timely filed his motion for attorney fees (#29) in the amount of
$7,741.48.
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LEGAL STANDARD
A party that prevails against the United States in a civil action is entitled, in ce1iain
circumstances, to an award of attorney fees, court costs, and other expenses under the EAJA.
28 U.S.C. § 2412. Section 2412(d)(l)(A) of the EAJA provides in pe1iirtent part:
Except as otherwise specifically provided by statute, a court shall
award to a prevailing paiiy 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), including proceedings for judicial review of agency action,
brought by or against the United States in any comi 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)(l)(A).
"Fees and other expenses," as defined in the EAJA, include "reasonable attorney fees."

Id. Under the EAJA, attorney fees are set at the market rate, but capped at $125 per hour. Id.
The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the
prevailing party to the extent that the paiiy "unduly and unreasonably protracted" the resolution
of the case. 28 U.S.C. §§ 2412(d)(l)©, 2412(d)(2)(D).
In determining a proper fee award under the EAJA, a comi must consider the
reasonableness of fees resulting from a motion or appeal that does not advance the moving
party's position. See Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). While "[t]here is no
precise rnle or formula for making these determinations," a court may consider an array of
factors, including the results obtained from the disputed work. Hensley v. Eckerhart, 461 U.S.
422, 434, 436 (1983).

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DISCUSSION
Carr argues that all hours expended at the federal district court level were reasonable and
necessmy due to the actions of the Commissioner, particularly conditions the Commissioner
imposed on her Request for Remand ("Request") (#25). 1 Pl.'s Br. in Support of Motion for
Attorney Fees Pursuant to EAJA ("Pl.'s Supp. Br."), #31, 3. The Commissioner argues that the
time Carr spent opposing the Request, as well as subsequent time spent on the instant motion, is
unreasonable under the framework set forth by EAJA and Atkins v. Apfel. See Atkins, 154 F.3d at
989. Relying on that argument and the relevant standards, the Commissioner maintains that
Carr's attorney fee award should amount to $6,071.47, rather than $7,741.48. Def. 's Response,
#33, 2.

A.

Conditions for Remand and Court Order

Can's arguments advancing his position that all documented fees are reasonable under
EAJA rests on one central point: all benefits conferred upon him by this Court's order to remand
were "significantly more favorable" than the limited terms proposed in the Request (#25). Pl. 's
Supp. Br., #31, 3. The relevant aspects of the Request are as follows:
The Commissioner, therefore, respectfully requests this Court reverse
and remand this case for further administrative proceedings ... with
the following conditions of remand: the ALJ will [ 1] hold a new
hearing and issue a new decision; [2] consider the evidence submitted

1

Additionally, Can describes the requirements to support a claim for attorney fees
pursuant to EAJA and goes on to argue the "prevailing pmty" and "substantially justified"
elements for such a claim. Shala/av. Schaefer, 113 S.Ct. 2625, 2631 (1993); Flores v. Sha/ala,
49 F.3d 562, 569 (9th Cir. 1995). I note that these issues are not disputed in this case. The
Commissioner concedes that Carr's EAJA petition was timely filed, that CmT was the prevailing
party in the underlying action, and that the Commissioner was not substantially justified in her
initial position. Def. 's Response, #33, 2. I consider those factors moot and therefore omit
related analysis from this opinion.
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to the Appeals Council; [3] reevaluate the medical op1mons,
including the opinions of State agency medical consultants; [4]
evaluate the disability determination by the Oregon Office of
Vocational Rehabilitation Services; and [5] obtain supplemental
evidence from a vocational expe1i, including whether Plaintiff has
any transferable skills.
Request, #25, 13. In comparison, the relevant aspects of this Court's remand order are as
follows:
[T]he ALJ must reconsider the credibility of Carr's testimony and
reconsider the weight accorded to each of the expe1i medical opinions
in the record and the weight, if any, accorded to the OVRS 's finding
... The comi cannot detennine whether Carr's new MRI makes his
limitation testimony credible or whether Drs. Freed and Edmonds'
opinions and the OVRS's disability finding now deserve more
weight. This detennination is appropriately left to the Administration.

Carr v. Colvin, 2014 WL 3475056 *9 (D. Or. July 11, 2014) (omitting footnotes). This comi
also specifically required the ALJ to reconsider on remand the opinion of Dr. David Freed to a
limited extent. Id. at n. 5. The order concluded that "[t]he Administration should evaluate Carr's
[additional medical evidence], and reevaluate all the evidence in the record in light of the new
evidence .... " Id. at *10.
Carr attempts to draw a distinction between the conditions of the Request and the
subsequent opinion of this Cou1i. He asserts that the Commissioner's "proposed conditions for
remand would have granted more limited consideration." Pl. 's Supp. Br., #31, 3. Can· sets foiih
two primmy arguments to support this position: (1) that the Commissioner did not concede error
regarding the ALJ's consideration of Dr. Freed's opinion; and (2) the Commissioner's Request
"was specific and particularized, omitting []any reconsideration of CmT's credibility." Id. at 4.

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I disagree with Can" s asseliion that the relief provided by this court advanced his position more
so than the te1ms proposed by the Commissioner.

B.

Dr. Freed's Medical Opinion

Regarding Can's first point, I note that, in her Request, the Commissioner sought a
reevaluation of the medical opinions in the underlying case. Request, #25, 13. Importantly, this
did not exclude the reevaluation of Dr. Freed's opinion. Can co1Tectly asse1ts that the
Commissioner did not concede enor regarding Dr. Freed' s opinion, and I note that the Request
specifically outlined several arguments as to why Dr. Freed' s opinion was assigned little weight.
See Request, #25, 9. Nonetheless, the Commissioner's refosal to concede the ALJ's initial error

in evaluating Dr. Freed' s opinion does not upset the fact that the Request asked this court to grant
an inclusive reevaluation of all of the medical evidence. See generally Request, #25, 13. To
rebut this point, Can argues in his reply that
[The Commissioner's] defense of the ALJ's handling of Dr. Freed
would have served no purpose had [the Commissioner] not intended
that the prior averse finding eliminate any need for fmther
consideration of that evidence on remand.
Pl. 's Reply, #34, 1. I find this argument unavailing. Whether the Commissioner desired a
ce11ain outcome with its Request does not change the terms contained therein, which are general
and do not place any condition on the weight assignment for Dr. Freed's opinion. Request, #25,
13.
Thus, Can's asse1tions regarding Dr. Freed's opinion do not support the reasonableness
of the hours expended subsequently to the Commissioner's Request.

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C.

Carr's Credibility

Carr next argues that the hours spent opposing the Commissioner's Request were
reasonable because, in its imposed conditions, the Request omitted any mention of the ALJ's
credibility assessment of Carr's testimony at the initial hearing. Pl. 's Supp. Br., #31, 4. The
Commissioner argues that it omitted such language not in an effort to require the same credibility
finding on remand, but instead to order a new hearing altogether, complete with an opportunity
for the ALJ to conduct new credibility findings. Def.'s Response, #33, 3. The Commissioner
contends that
[Call'] is incotl'ect that this Court's order was substantially more
favorable than the Commissioner's proposed remand terms. The
Commissioner's proposed terms including the requirement that [Call']
be given a "new hearing." This would have necessitated forth er
evaluation of [Can·'s] credibility in a manner consistent with this
Court's order.

Id. at 4 (citations omitted). I agree. Had the Commissioner imposed terms on its remand that
requesting the ALJ' s initial credibility finding regarding Call' be sustained, then Call'' s argument
on this point would be valid. However, I construe a "new hearing" to entail new credibility
findings, new oppo1iunity for testimony in light of the additional medical evidence presented,
and a new outcome inf01med by the changed circumstances.
I also note that, in this Comi's order for remand, the ALJ's credibility finding regarding
Carr's testimony was sustained. Carr v. Colvin, 2014 WL 3475056 at *6. This suppo1is the
Commissioner's argument that Call' "did not accomplish a substantial improvement in [his]
position by turning down the Commissioner's settlement offer." Def.'s Response, #33, 5. Thus,
contrary to Can·' s asse1iions otherwise, this Court's ultimate decision was not "significantly more

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favorable" than the terms imposed on the Commissioner's Request.
Thus, because Ca!1"'s refusal to accept the Commissioner's request for remand and the
results from subsequent disputed work did not accomplish any substantial advancement in his
position, time spent opposing the Request was not reasonably expended.
CONCLUSION
For the reasons above, CmT's motion for attorney fees and costs pursuant to EAJA (#29)
is granted inpmi. Ca11" is awarded fees in the amount of$6,071.47, as requested in the
Commissioner's brief (#33, 2) and as informed by the indices supplied by Carr along with his
motion (#30, 1-2).
IT IS SO ORDERED.
Dated this 29th day of December, 2014.

Honorable Paul Papak
United States Magistrate Judge

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