Cole v. Astrue
Filing
41
ORDER granting in part and denying in part 35 Motion for Attorney Fees. Signed by Chief Judge Jeffrey L. Viken on 2/19/15. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 11-5034-JLV
BEVERLY J. COLE,
Plaintiff,
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
EAJA FEES
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
NATURE AND PROCEDURE OF THE CASE
On March 21, 2014, the court entered an order (1) reversing the decision of
the Commissioner of the Social Security Administration (“Commissioner”)
denying Beverly Cole’s application for benefits, (2) denying the defendant’s
motion to affirm the decision of the Administrative Law Judge (“ALJ”), and
(3) remanding the case for further administrative proceedings.
(Docket 33).
Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412,
Catherine Ratliff, counsel for Ms. Cole, timely moved for an award of attorney’s
fees and expenses.
attorney’s fees.
(Docket 35).
Ms. Cole seeks an award of $27,228.83 in
She also requests expenses representing a 6-percent state and
local sales tax of $1,633.73 and $528.01 in litigation costs “for the cost of [a]
treating specialist opinion, vocational aptitude/ability testing, medical records,
[and] on-line expert opinion.”
motion.
(Docket 38).
Id. at 1.
The Commissioner opposes Ms. Cole’s
For the reasons stated below, the court grants in part
and denies in part Ms. Cole’s motion.
DISCUSSION
Under the EAJA, a court shall award to a prevailing party, other than the
United States, fees and expenses1 incurred in any civil action brought by or
against the United States, “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).
A party seeking such an award must
comply with the following requirements: (1) the party must file an application for
fees and expenses demonstrating the party is the prevailing party and is eligible
to receive an award; (2) the party must submit the application within 30 days of
final judgment in the case;2 (3) the party must indicate the amount sought and
provide an itemized statement in support; and (4) the party must allege the
position of the United States was not substantially justified.
§ 2412(d)(1)(B).
28 U.S.C.
“Whether or not the position of the United States was
substantially justified shall be determined on the basis of the record (including
the record with respect to the action or failure to act by the agency upon which
1Fees
and expenses include “the reasonable expenses of expert witnesses,
the reasonable cost of any study, analysis, engineering report, test, or project
which is found by the court to be necessary for the preparation of the party’s
case, and reasonable attorney fees . . . .” 28 U.S.C. ' 2412(d)(2)(A).
2“The
30–day EAJA clock begins to run after the time to appeal that ‘final
judgment’ has expired.” U.S. E.E.O.C. v. Mid-Minnesota Fed. Credit Union, 820
F. Supp. 432, 434 (D. Minn. 1993) (quoting Melkonyan v. Sullivan, 501 U.S. 89,
96 (1991)). Under the Federal Rules of Appellate Procedure, a “notice of appeal
may be filed by any party within 60 days after entry of the judgment or order
appealed from if one of the parties is . . . a United States officer or employee sued
in an official capacity.” Fed. R. App. P. 4(a)(1)(B).
2
the civil action is based) which is made in the civil action for which fees and other
expenses are sought.”
Id.
The court finds Ms. Cole fully complied with the requirements of the EAJA.
Ms. Cole is the prevailing party under the court’s reversal and remand order and
subsequent judgment.
(Dockets 33 & 34); see Larson v. Astrue, Civil No.
06-1734 PJS/FLN, 2008 WL 2705494, at *2 (D. Minn. July 9, 2008) (citing
Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993)) (“The Supreme Court has held
that a judgment granting remand is a final judgment for which fees may be
granted.”). Ms. Cole filed her motion for fees and expenses well within the
EAJA’s 30-day window following the close of the appeal period.
(Docket 35).
Her attorney, Ms. Ratliff, set forth the amount requested and properly provided
an itemized log detailing the actual time expended in this case.
(Dockets 35 &
37-2).
The heart of the parties’ dispute centers around the fourth requirement of
the EAJA—whether the position of the United States was substantially justified.
The court notes the government at all times bears the burden of proving its
position was substantially justified.
(8th Cir. 2005).
Goad v. Barnhart, 398 F.3d 1021, 1025
A social security claimant may be the prevailing party for
purposes of the EAJA, yet still not be entitled to an award of fees if the
government’s position was substantially justified.
“A position enjoys
substantial justification if it has a clearly reasonable basis in law and fact.”
A loss on the merits by the government does not create a presumption that it
3
Id.
lacked substantial justification for its position.
Id.
This distinction is
explained as follows:
The district court correctly recognized that “fees are not . . . awarded
just because the Secretary [loses a] case.” The Secretary’s position
in denying benefits can be substantially justified even if the denial is
unsupported by substantial evidence on the record as a whole.
This is so because the substantial evidence and substantial
justification standards are different.
Under the substantial
evidence standard, the district court must consider evidence that
both supports and detracts from the Secretary’s position. In
contrast, under the substantial justification standard the district
court only considers whether there is a reasonable basis in law and
fact for the position taken by the Secretary. Because the standards
are “neither semantic nor legal equivalents,” the Secretary can lose
on the merits of the disability question and win on the application
for attorney’s fees.
Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir. 1991) (internal citations omitted).
The court finds the government cannot meet its burden in showing
substantial justification for its position.
The government’s position was not well
founded in fact or law, as explained in the court’s reversal and remand order.
Lauer v. Barnhart, 321 F.3d 762, 764 (8th Cir. 2003) (“The standard is whether
the Secretary’s position is ‘clearly reasonable, well founded in law and fact, solid
though not necessarily correct.’ ”) (citation omitted).
The government asserts the “ALJ waded into [a] complicated record” in
Ms. Cole’s case and that Ms. Cole’s “case involve[d] primarily factual questions
touching on complicated neurosurgery issues,” which the government was
substantially justified in defending under existing precedent for the United
States Court of Appeals for the Eighth Circuit.
(Docket 38 at p. 3).
The
government further asserts this is particularly true where the court remanded
Ms. Cole’s case based on the ALJ’s assessment of witness’ testimony and
4
credibility.
Id. at 3-4.
The government’s assertions represent a skewed
reading of the court’s decision reversing the decision of the Commissioner.
(Docket 33).
Integral to the court’s decision to reverse the decision of the Commissioner
was the ALJ’s decision to “rely[] on the opinions of Dr. Janese, Dr. Buchkoski
and Dr. Soule, [while] fail[ing] to provide ‘good reasons’ for discounting the
opinions of Ms. Cole’s treating physicians.”
Id. at 29.
The ALJ relied on the opinions of Dr. Janese, a non-examining physician,
who opined that Ms. Cole fully recovered from any brain condition related to her
hydrocephalus following a successful brain shunt surgery.
However, Dr.
Janese mistakenly believed Ms. Cole’s shunt surgery occurred in 1982 when the
surgery actually occurred in 1998.3 Id. at 13-14.
This mistake alone
demonstrates Dr. Janese’s lack of familiarity with Ms. Cole’s medical records.
Id. at 14.
Nonetheless, the ALJ continued to accept Dr. Janese’s opinion that
Ms. Cole’s hydrocephalus was corrected by the shunt surgery despite two of Ms.
Cole’s treating physicians, Dr. Lassegard and Dr. Finley, concluding to the
contrary.
Id. at 14-15.
Dr. Lassegard determined Ms. Cole continued to suffer from delusional
thoughts two years after her abscess surgery.
Id. at 15.
Dr. Finley concluded
that Ms. Cole exhibited symptoms of slit ventricle syndrome after reviewing a CT
scan of her brain.
Id.
For his part, Dr. Janese attributed Ms. Cole’s delusional
thoughts to “general anesthesia and opiates,” and opined that the “slit-like
3The
court notes the ALJ adopted Dr. Janese’s opinion regarding the date
of Ms. Cole’s shunt surgery despite being aware that this date was incorrect. Id.
at 13.
5
ventricles” meant the brain shunt was working.
Id. at 14.
The ALJ did not give
good reasons for discounting the opinions of Ms. Cole’s treating physicians in
favor of accepting those of Dr. Janese.
The ALJ also relied on the opinions of Dr. Buchkoski and Dr. Soule, state
agency psychiatric consultants who had not reviewed Ms. Cole’s entire medical
record.
Id. at 15-16.
Dr. Buchkoski only reviewed Ms. Cole’s pre-August 2007
medical and testing evidence.
2008 medical evidence.
2012.
Id. at 16.
Id.
Dr. Soule only reviewed Ms. Cole’s pre-February
Ms. Cole received medical treatment through
Again, the ALJ relied on the opinions of consulting
psychiatrists who had not reviewed the entire medical record over those of Ms.
Cole’s treating physicians.
The ALJ did not give good reasons for doing so.
The ALJ did not weigh the opinion of consulting psychologist Dr. Greg
Swenson who diagnosed Ms. Cole with type I bipolar disorder and an amnestic
disorder possibly due to a brain lesion.
Id. at 16-17.
Dr. Swenson described
Ms. Cole has having difficulty sustaining her attention for any length of time.
Id. at 17.
The ALJ also did not address the opinions and test results of
vocational expert Ms. Linda Lockner regarding Ms. Cole’s severe finger dexterity
limitations.
Id.
The ALJ improperly discounted the opinions of Ms. Cole’s treating
physicians, particularly when they were in conflict with those of the state agency
consultants and non-examining physicians.
And, where the opinions of
consulting doctors and healthcare professionals Dr. Swenson and Ms. Lockner
corroborated the opinions of Ms. Cole’s treating physicians, the ALJ failed to
properly consider or even discuss those opinions.
6
The ALJ similarly discounted
third-party statements regarding Ms. Cole’s ability to work that largely mirrored
the opinions of her treating physicians and Dr. Swenson.
Id. at 23-26 (At least
seven of the witnesses noted Ms. Cole’s problems with her memory,
concentration, focus and ability to follow instructions.).
Despite the government’s assertions, this is not a case where “resolution
. . . hinges to [a significant] extent on determinations of witness credibility, [such
that] it is an abuse of discretion to find that the government’s position was not
substantially justified.” United States v. Hurt, 676 F.3d 649, 653 (8th Cir.
2012) (citing Wilfong v. United States, 991 F.2d 359, 368 (7th Cir. 1993) (internal
quotation marks omitted). Although Ms. Cole’s case did involve a lengthy record
with complex factual issues, this was not a primary basis of the court’s reversal
of the Commissioner’s decision. The ALJ simply cannot discount the opinions
of multiple treating physicians in favor of non-examining physicians and
consultants without first engaging in a substantive analysis explaining and
giving good reasons why those opinions should be discounted.
This is
especially true where evidence in the record, the opinions of a consulting
psychiatrist and healthcare professional, and multiple third-party statements
corroborate the opinions of the treating physicians.4
4The
court reiterates its finding that the ALJ’s assessment of Ms. Cole’s
credibility and his decision to discredit her subjective complaints was not
supported by substantial evidence. (Docket 33 at pp. 18-23). However,
because the court already found that the government’s position in Ms. Cole’s
case was not substantially justified, the court need not consider the
government’s position in this regard.
7
For these reasons, the government’s position in Ms. Cole’s case was not
substantially justified and is distinguishable from the “factual-inquiry” line of
cases cited by the government. The issue in this case was the process, or lack
thereof, the ALJ employed in reaching the decision to deny
Ms. Cole social
security benefits. Hurt, 676 F.3d at 653 (“Credibility is the quintessential
factual question.”); Bale v. Chevrolet Co. v. United States, 620 F.3d 868, 873 (8th
Cir. 2010) (noting that “where a case involves primarily factual questions, this
court has found that the government’s position was substantially justified.”);
Kaffenberger v. United States, 314 F.3d 944, 960 (8th Cir. 2003) (discussing the
fact intensive nature of the informal claim doctrine).
Because the government’s position was not substantially justified, an
award of fees and expenses under the EAJA is proper.
The court next considers
whether the total amount requested by Ms. Cole is appropriate.
Ms. Cole requests an award of attorney’s fees at the rate of $177.50 per
hour.
(Docket 37-1 at p. 3).
attorney’s fees.
The EAJA sets a limit of $125 per hour for
28 U.S.C. § 2412(d)(2)(A).
However, a court may award a
higher hourly fee if “an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.”
Id.
The court finds the rate of $177.50 per hour
reasonable in light of the necessary adjustment for inflation and the training and
experience of Ms. Ratliff in the practice of social security law.
The
Commissioner did not request a reduction in the hourly rate of $177.50 for
Ms. Ratliff’s fees.
However, the Commissioner does object to the total number of
8
hours billed by Ms. Ratliff.
Id. at pp. 10-12.
Ms. Ratliff expended 231.56
hours on Ms. Cole’s case, but she voluntarily reduced her EAJA attorney’s fees
request to 155.15 hours.5 (Docket 37-2).
The Commissioner, without
proposing a recommended number of hours, seeks to reduce the number of
Ms. Ratliff’s billable hours even further.
(Docket 38 at pp. 4-5).
A court has the discretion to reduce the amount of the award or deny an
award “to the extent that the prevailing party during the course of the
proceedings engaged in conduct which unduly and unreasonably protracted the
final resolution of the matter in controversy.”
28 U.S.C. § 2412(d)(1)(C).
The
court must also decide whether the hours spent by Ms. Ratliff representing
Ms. Cole were “reasonably expended.”
(1984); 28 U.S.C. § 2412(d)(2)(A).
See Blum v. Stenson, 465 U.S. 886, 901
The court acknowledges the administrative
record in Ms. Cole’s case was extensive.
However, after reviewing Ms. Ratliff’s
time and expense log (Docket 37-2) and considering the parties’ arguments on
this issue, the court finds certain reductions are proper.
Due to the manner in which Ms. Ratliff itemized and recorded her time in
her “Log of Attorney Time Expenses” (Docket 37-2), the court finds it most helpful
5Ms.
Ratliff’s request of attorney’s fees for 155.15 hours of work is
purportedly based on a 33.33-percent reduction of her total hours worked
(231.56). (Docket 37-2 at p. 27). However, a 33.33-percent reduction of
231.56 hours is 154.37 hours. Because Ms. Cole’s attorney declaration clearly
requests attorney’s fees for 155.15 hours, the court overlooks the mathematical
discrepancy and interprets Ms. Cole’s motion as requesting attorney’s fees for
155.15 hours of work. See Docket 37-1 at p. 3.
9
to chronologically organize her hours into categories based on the dates on which
certain documents were filed in the court’s online docket.6
On or before April 19, 2011, Ms. Cole filed her complaint in district court,
prepared a motion and affidavit to proceed in forma pauperis, which the court
granted, and issued multiple summonses.
(Dockets 1, 2, 3, 4, 5, 6).
expended approximately 4.1 hours performing these tasks.
1).
Ms. Ratliff
(Docket 37-2 at p.
The court finds Ms. Ratliff reasonably expended this 4.1 hours.
On August 5, 2011, the court granted the government’s motion for a
sentence six remand pursuant to 42 U.S.C. § 405(g).
(Docket 16).
Leading up
to the court’s remand order, Ms. Ratliff incurred approximately 17.74 hours
working on Ms. Cole’s case (Docket 37-2 at pp. 1-3), which included only one
court filing—an affidavit of service.
(Docket 8).
was excessive at that stage of the litigation.
The court finds 17.74 hours
The court finds 5.5 hours spent
developing Ms. Cole’s case to be a more appropriate amount of time given the
early procedural posture of the case.
On May 3, 2012, a second administrative hearing was held.
p. 2).
(Docket 33 at
Ms. Ratliff expended approximately 88.31 hours preparing for, traveling
to, and attending this hearing.
(Docket 37-2 at pp. 3-9).
hours is excessive for a one-hour administrative hearing.
The court finds 88.31
The court finds 55
hours spent preparing for, traveling to, and attending the hearing to be a more
6The
court’s chronological method of organizing Ms. Ratliff’s billable hours
was necessitated by the fact that Ms. Ratliff’s individual time entries tended to
obfuscate the actual amount of time Ms. Ratliff spent performing work that is
recoverable under 28 U.S.C. § 2412. See, e.g., Docket 37-2 at pp. 2, 3, 7, 11, 14.
10
appropriate amount of time given the complex factual issues surrounding Ms.
Cole’s hydrocephalus brain condition and her ability to work.
On July 12, 2012, the ALJ issued an unfavorable decision regarding
Ms. Cole’s ability to obtain Social Security benefits.
(Docket 33 at p. 2).
Prior
to the unfavorable decision, Ms. Ratliff prepared a post-hearing brief and
exhibits.
(Docket 37-2 at p. 10).
hours in this regard.
Id. at 9-11.
Ms. Ratliff expended approximately 9.55
The court finds 9.55 hours is excessive.
The
court finds 7.58 hours to be a more appropriate amount of time to complete the
post-hearing briefing.
On March 19, 2013, Ms. Ratliff, on behalf of Ms. Cole, filed a joint
statement of material facts (“JSMF”) and a brief in support of her second motion
to reverse the decision of the Commissioner.
See Dockets 17, 28, 29.
Ms. Ratliff expended approximately 98.84 hours preparing the JSMF and
briefing her second motion to reverse the decision of the Commissioner.
(Docket 37-2 at pp. 11-19).
The court finds that 98.84 hours preparing a JSMF
and supporting brief is excessive.
The court finds 54.25 hours to be a more
appropriate amount given the time already expended preparing for the
administrative hearing and the relative simplicity of the legal issues raised in Ms.
Cole’s appeal.
On May 2, 2013, Ms. Ratliff filed a brief in response to the government’s
motion to affirm the decision of the Commissioner.
(Docket 32).
Ms. Ratliff
expended approximately 6.41 hours preparing Ms. Cole’s reply brief.
37-2 at pp. 19-21).
excessive.
(Docket
The court finds that 6.41 hours preparing this reply brief is
The court finds 4.25 hours to be a more appropriate amount of time
11
given the time Ms. Ratliff already expended preparing for the administrative
hearing and the briefing she had already completed.
On April 29, 2014, following this court’s March 21, 2014, order granting
Ms. Cole’s motion to reverse the decision of the Commissioner, Ms. Ratliff filed a
motion for attorney’s fees under the EAJA.
(Docket 35).
Ms. Ratliff expended
approximately 6.61 hours working on Ms. Cole’s case following the filing of her
reply brief through the filing of her motion for attorney’s fees.
pp. 21-27).
(Docket 37-2 at
Ms. Ratliff expended 2.5 hours preparing her motion for attorney’s
fees and supporting documents.
Id. at 27.
The court finds only the 2.5 hours
spent preparing the EAJA motion are an appropriate expenditure of time at that
juncture in Ms. Cole’s case.
After reviewing Ms. Ratliff’s “Log of Attorney Time Expenses,” the court
finds these reductions are appropriate.
The court finds a total of 133.27 hours
billed by Ms. Ratliff is reasonable and in line with the complexity of this case, for
a total attorney’s fee award of $23,643.00.
The Commissioner did not object to
an “expense” award of 6-percent state and local sales tax on the attorney’s fees,
which in this case amounts to $1,418.58.
The Commissioner also did not object
to Ms. Cole’s reimbursement request of $528.01 for expenses incurred in
connection with litigating this matter.
These expenses included: $35.51 for the
cost of medical records; $17.50 for an online expert opinion; $175 for a treating
7The
court rounds Ms. Ratliff’s hours from 133.18 to 133.2 hours. The
court notes that its reductions to Ms. Ratliff’s billable hours exceed the total
amount of hours contained in the time entries the government objected to in its
brief in response to Ms. Cole’s EAJA motion for attorney’s fees. See Docket 38 at
pp. 4-5.
12
specialist opinion; and $300 for vocational aptitude and ability testing.
(Docket
37-1 at p. 3).
Based on the analysis above, it is hereby
ORDERED that plaintiff’s motion (Docket 35) is granted in part and denied
in part.
Plaintiff is awarded $25,589.59 comprised of $23,643.00 in attorney’s
fees, $1,418.58 in expenses representing 6-percent state and local sales tax on
the attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412(d), and litigation expenses of $528.01.8
IT IS FURTHER ORDERED that this award is without prejudice to
plaintiff’s right to seek attorney’s fees under section 206(b) of the Social Security
Act, 42 U.S.C. § 406(b), subject to the offset provision of the Equal Access to
Justice Act; however, this award shall constitute a complete release from and bar
to any and all other claims plaintiff may have relating to the Equal Access to
Justice Act in connection with this case.
IT IS FURTHER ORDERED that under Astrue v. Ratliff, 560 U.S. 586,
595-98 (2010), Equal Access to Justice Act fees awarded by the court belong to
the plaintiff and are subject to offset under the Treasury Offset Program,
31 U.S.C. § 3716(c)(3)(B) (2006).
8On
April 18, 2011, the court authorized Ms. Cole to proceed on an in
forma pauperis basis. (Docket 5). The court reminds Ms. Cole of her obligation
to repay the costs and fees, including the $350 filing fee, which were not
originally charged due to the court finding her indigent and unable to pay at the
time her suit was filed. Id.
13
IT IS FURTHER ORDERED that the Equal Access to Justice Act fees shall
be paid to plaintiff Beverly J. Cole but delivered to plaintiff’s attorney Catherine
G. Ratliff, 13060 Eagle Court, Hot Springs, South Dakota 57747-7352.
Dated February 19, 2015.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
14
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