McCall v. Colvin

Filing 27

ORDER granting 24 Motion for EAJA Attorney Fees and Expenses - by Judge J Richard Creatura.(SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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SANDRA A. MCCALL,
Plaintiff,

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v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

CASE NO. 3:14-cv-5636 JRC
ORDER ON PLAINTIFF’S
CONTESTED MOTION FOR
ATTORNEY’S FEES PURSUANT
TO THE EQUAL ACCESS TO
JUSTICE ACT

Defendant.

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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States

19 Magistrate Judge, Dkt. 6). This matter comes before the Court on plaintiff’s contested
20 motion for attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412
21 (hereinafter “EAJA”) (see Dkt. 24, 25, 26).
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Subsequent to plaintiff’s success at obtaining a reversal of the decision of the

23 Social Security Administration, defendant Acting Commissioner challenged plaintiff’s
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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 1

1 request for statutory attorney’s fees on the grounds that defendant’s position in this
2 matter was justified in substance and had a reasonable basis in fact and law.
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Because this Court disagrees, and because the requested fees are reasonable,
plaintiff’s motion for statutory fees is granted.

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BACKGROUND and PROCEDURAL HISTORY

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On March 31, 2015, this Court issued an Order reversing and remanding this
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matter for further consideration by the Administration (see Dkt. 21).
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The Court found that the ALJ failed to properly evaluate the medical evidence
submitted by examining psychologist Dr. Tasmyn Bowes (see id., pp. 4-11). This matter

11 was reversed pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration
12 due to the harmful error in the evaluation of Dr. Bowes’ opinion (see id., pp. 10-11).
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Subsequently, plaintiff filed a motion for EAJA attorney’s fees, to which

14 defendant objected (Dkt. 24, 25). Defendant asserts that the Court should not award
15 attorney’s fees under the EAJA because defendant’s position was substantially justified
16 (Dkt. 25). Plaintiff filed a reply (Dkt. 26).
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STANDARD OF REVIEW
In any action brought by or against the United States, the EAJA requires that “a

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court shall award to a prevailing party other than the United States fees and other
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expenses . . . . unless the court finds that the position of the United States was
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substantially justified or that special circumstances make an award unjust.” 28 U.S.C. §
2412(d)(1)(A).

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 2

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According to the United States Supreme Court, “the fee applicant bears the burden

2 of establishing entitlement to an award and documenting the appropriate hours
3 expended.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The government has the
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burden of proving that its positions overall were substantially justified. Hardisty v.
Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010), cert. denied, 179 L.Ed.2d 1215, 2011

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U.S. LEXIS 3726 (U.S. 2011) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir.
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1995)). Further, if the government disputes the reasonableness of the fee, then it also “has
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a burden of rebuttal that requires submission of evidence to the district court challenging
the accuracy and reasonableness of the hours charged or the facts asserted by the

11 prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 139712 98 (9th Cir. 1992) (citations omitted). The Court has an independent duty to review the
13 submitted itemized log of hours to determine the reasonableness of hours requested in
14 each case. See Hensley, supra, 461 U.S. at 433, 436-37.
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DISCUSSION
In this matter, plaintiff clearly was the prevailing party because she received a
remand of the matter to the administration for further consideration (see Order on
Complaint, Dkt. 21). In order to award a prevailing plaintiff attorney’s fees, the EAJA

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also requires a finding that the position of the United States was not substantially
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justified. 28 U.S.C. § 2412(d)(1)(B).
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The Court notes that the fact that the Administration did not prevail on the merits
does not compel the conclusion that its position was not substantially justified. See Kali v.

24 Bowen, 854 F.2d 329, 334 (9th Cir. 1988)) (citing Oregon Envtl. Council v. Kunzman,
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 3

1 817 F.2d 484, 498 (9th Cir. 1987)). The Court also notes that when determining the issue
2 of substantial justification, the Court reviews only the “issues that led to remand” in
3 determining if an award of fees is appropriate. See Toebler v. Colvin, 749 F.3d 830, 834
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(9th Cir. 2014)).
The Supreme Court squarely addressed the meaning of the term “substantially

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justified.” See Pierce v. Underwood, 487 U.S. 552, 564-68 (1988). The Court concluded
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that “as between the two commonly used connotations of the word ‘substantially,’ the
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one most naturally conveyed by the phrase before us here is not ‘justified to a high
degree,’ but rather ‘justified in substance or in the main’ -- that is, justified to a degree

11 that could satisfy a reasonable person.” Id. at 565. The Court continued, noting that the
12 stated definition “is no different from the ‘reasonable basis both in law and fact’
13 formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals
14 that have addressed this issue.” Id. (citations omitted).
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In addition, as stated by the Ninth Circuit, a “substantially justified position must

16 have a reasonable basis both in law and fact.” Guiterrez v. Barnhart, 274 F.3d 1255, 1258
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(9th Cir. 2001) (citing Pierce v. Underwood, supra, 487 U.S. at 565; Flores v. Shalala,
49 F.3d 562, 569 (9th Cir. 1995)). The Court is to focus on whether or not the

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Administration was substantially justified in taking its original action and in defending
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the validity of the action in court. Id. at 1259 (citing Kali, supra, 854 F.2d at 332).
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However, “if ‘the government’s underlying position was not substantially justified,’” the
Court must award fees and does not have to address whether or not the government’s

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 4

1 litigation position was justified. See Toebler, supra, 749 F.3d at 832 (quoting Meier v.
2 Colvin, 727 F.3d 867, 872 (9th Cir. 2013)).
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Here, the Court concluded that the ALJ erred by finding that Dr. Bowes’ opinion
was entitled to less weight because she had to rely on plaintiff’s self-reports to evaluate
her (see Dkt. 21, pp. 5-8). It was clear from the record that Dr. Bowes’ opinion of

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plaintiff’s limitations was based on objective evidence obtained from an extensive and
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thorough mental status examination (“MSE”), Dr. Bowes’ personal observations, and
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plaintiff’s self-reported symptoms (see id. at pp. 6-8 (citing AR. 588-98)). Under these
factual circumstances, an ALJ’s doubts about plaintiff’s subjective testimony do not

11 constitute a legally sufficient basis to reject Dr. Bowes’ opinion. See Ryan v.
12 Commissioner of Social Sec., 528 F.3d 1194, 1199 (9th Cir. 2008) (an ALJ may not reject
13 a physician’s opinion that is based in part on claimant’s subjective complaints “where the
14 doctor does not discredit those complaints and supports his ultimate opinion with his own
15 observations”).
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The Court also concluded that the ALJ failed to address several functional
limitations opined by Dr. Bowes (see Order, Dkt. 21, pp. 8-9 (citing AR. 31, 591)). It is
clearly established in the law that the Commissioner “may not reject ‘significant

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probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th
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Cir. 1995) (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting
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Cotter v. Harris, 642 F.2d 700, 706-07 (3d Cir. 1981))). Additionally, the Court
determined that the ALJ erred by giving less weight to Dr. Bowes’ opinion because it was

24 only a “snapshot” of plaintiff’s functioning (see Order on Complaint, Dkt. 21, p. 6). An
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 5

1 ALJ would effectively discredit most, if not all, examining physicians’ opinions if an
2 opinion could be discredited because the physician only saw the claimant on one
3 occasion. This is not a proper reason for discrediting Dr. Bowes’ opinion. See Yeakey v.
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Colvin, 2014 WL 3767410, *6, 2014 U.S. Dist. LEXIS 106081 (W.D. Wash. July 31,
2014).

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Based on the above stated errors, the Court reversed and remanded the ALJ’s
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decision as the ALJ failed to provide specific and legitimate reasons supported by
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substantial evidence for discounting Dr. Bowes’ opinion (see Order on Complaint, Dkt.
21, pp. 5-10). Discounting a physician’s opinion without proper justification is a “basic

11 and fundamental” error. Shafer v. Astrue, 518 F.3d 1067, 1071-72 (9th Cir. 2008). Absent
12 special circumstances, which defendant has failed to show exist in this case, “the defense
13 of basic and fundamental errors . . . is difficult to justify.” Corbin v. Apfel, 149 F.3d
14 1051, 1053 (9th Cir. 1998).
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In her response, defendant maintains that the ALJ’s position was substantially

16 justified because the Court remanded the case on an issue that was not raised by plaintiff
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in her opening brief (see Dkt. 25, pp. 2-5). Review of plaintiff’s opening brief and reply
brief filed in support of her complaint show that plaintiff argued issues relied on by the

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Court to find that the ALJ erred in his assessment of Dr. Bowes’ opinion (see Dkt. 15-1,
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pp. 11-12; 20, pp. 7-8). Further, the arguments in plaintiff’s opening brief have no
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bearing on whether or not the ALJ’s decision was substantially justified, nor explain why
defendant choose to litigate this case when the ALJ made basic and fundamental errors.

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 6

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Defendant also reiterates arguments regarding the merits of the underlying issue

2 and she argues that the Court simply evaluated the medical evidence and came to a
3 different conclusion after going outside the record to medical textbooks (see Dkt. 25, pp.
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4-5). In the Order, the Court cited to a treatise to explain that the MSE is the objective
portion of a mental evaluation, and did not use medical textbooks to assess plaintiff’s

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mental condition (see Order on Complaint, Dkt. 21, p. 7). Defendant also maintains that
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the ALJ gave a proper reason for rejecting Dr. Bowes’ opinion because the ALJ found
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that plaintiff lacked credibility (see Dkt. 25, pp. 4-5). As discussed above, the ALJ cannot
discredit Dr. Bowes’ opinion because he found that plaintiff lacked credibility when Dr.

11 Bowes relied on more than plaintiff’s subjective statements.
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The Court did not provide “merely an alternate interpretation of the evidence” as

13 argued by defendant (see Dkt. 25, p. 3-4). Rather, the Court concluded that the ALJ failed
14 to consider the significant, probative evidence and failed to provide legitimate reasons for
15 giving less weight to Dr. Bowes’ opinion. Thus, defendant’s arguments are not
16 persuasive, and the Court concludes that defendant has not demonstrated that the sole
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reason for the reversal of this case was regarding an issue with respect to which
reasonable minds could differ.

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The ALJ’s decision was unsupported by substantial evidence and based on legal
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error given his failure to state legally sufficient reasons to support the decision to deny
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benefits. The Court concludes that with respect to the ALJ’s decision and the
Administration’s defense of said decision before this Court regarding the conclusive issue

24 herein, the Administration’s position was not substantially justified. The Court also
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 7

1 concludes that there are no special circumstances which render an EAJA award in this
2 matter unjust. Accordingly, the Court will award Plaintiff attorney’s fees under the
3 EAJA.
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All that remains is to determine the amount of a reasonable fee. See 28 U.S.C. §
2412(b); Hensley, supra, 461 U.S. at 433, 436-37; see also Roberts v. Astrue, 2011 U.S.

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Dist. LEXIS 80907 (W.D. Wash. 2011), adopted by 2011 U.S. Dist. LEXIS 80913 (W.D.
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Wash. 2011).
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Once the court determines that a plaintiff is entitled to a reasonable fee, “the
amount of the fee, of course, must be determined on the facts of each case.” Hensley,

11 supra, 461 U.S. at 429, 433 n.7. According to the U.S. Supreme Court, “the most useful
12 starting point for determining the amount of a reasonable fee is the number of hours
13 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley,
14 supra, 461 U.S. at 433.
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Here, plaintiff prevailed on the claim of whether or not the denial of her social

16 security application was based on substantial evidence in the record as a whole and not
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based on harmful legal error. When the case involves a “common core of facts or will be
based on related legal theories . . . . the district court should focus on the significance

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of the overall relief obtained by the plaintiff in relation to the hours reasonably expended
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on the litigation.” See Hensley, supra, 461 U.S. at 435. The Supreme Court concluded
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that where a plaintiff “has obtained excellent results, his attorney should recover a fully
compensatory fee.” Id. Further, attorney’s fees may be awarded for counsel’s time spent

24 in applying for the EAJA award. See Commissioner, I.N.S. v. Jean, 496 U.S. 154, 157
ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 8

1 (1990) (concession that fees for time and expenses incurred in applying for fees were
2 covered in EAJA cases).
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The Court concludes, based on a review of the relevant evidence, that plaintiff
obtained excellent results. Therefore, the Court will look to “the hours reasonably
expended on the litigation,” which, when combined with the reasonable hourly rate,

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encompasses the lodestar. See Hensley, supra, 461 U.S. at 435. Other relevant factors
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identified in Johnson, supra, 488 F.2d at 717-19 “usually are subsumed within the initial
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calculation of hours reasonably expended at a reasonably hourly rate.” 1 See Hensley,
supra, 461 U.S. at 434 n.9 (other citation omitted); see also Kerr v. Screen Extras Guild,

11 Inc., 526 F.2d 67, 70 (9th Cir. 1975) (adopting Johnson factors); Stevens v. Safeway,
12 2008 U.S. Dist. LEXIS 17119 at *40-*41 (C.D. Cal. 2008) (“A court employing th[e
13 Hensley lodestar method of the hours reasonably expended multiplied by a reasonable
14 hourly rate] to determine the amount of an attorney’s fees award does not directly
15 consider the multi-factor test developed in Johnson, supra, 488 F.2d at 717-19, and Kerr,
16 supra, 526 F.2d at 69-70”); but see Goodwin v. Astrue, 2012 U.S. Dist. LEXIS 97651 at
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*10-*12, *14-*20 (W.D. Wash. 2012) (applying Johnson factors), adopted by 2012 U.S.
Dist. LEXIS 97650 (W.D. Wash. 2012). These guidelines are consistent with Washington

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Rules of Professional Conduct 1.5.
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The Johnson factors are: (1) The time and labor involved; (2) the novelty and difficulty of the questions involved; (3)
the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance
of the case; (5) the customary fee; (6) whether the fee is fixed or contingent: (7) time limitations imposed by the client or the
circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10);
the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in
similar cases. Johnson, supra, 488 F.2d at 717-19) (citations omitted); see also United States v.Guerette, 2011 U.S. Dist. LEXIS
21457 at *4-*5 (D. Hi 2011) (“factors one through five have been subsumed” in the determination of a number of hours
reasonably expended multiplied by a reasonable rate); but see City of Burlington v. Dague, 505 U.S. 557 (1992) (rejecting factor
6 of contingent nature of the fee).

ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 9

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Defendant argues that plaintiff should receive no more than 40% of the requested

2 attorney’s fees, and “[a]t the very least, the Court should impose” a 10% reduction in fees
3 (Dkt. 25, p. 6). Defendant contends that the fees should be reduced because plaintiff’s
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counsel did not raise any of the arguments that led to a remand in the opening brief (see
id.). As previously discussed, the Court concludes that plaintiff raised arguments in both

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her opening brief and reply brief which led to remand in this case (see Dkt. 15-1, pp. 117

12; 20, pp. 7-8). Defendant also contends that the time spent by plaintiff’s attorney
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“do[es] not bear a rational relation to the merits litigation (sic)” (Dkt. 25, p. 6). Defendant
fails to explain why the hours are unreasonable or how the hours should be reduced, see

11 Gates v. Deukmejian, 987 F.2d at 1397-98 (government has burden to show
12 unreasonableness), and “courts should generally defer to the ‘winning lawyer’s
13 professional judgment as to how much time he was required to spend on the case.’” Costa
14 v. Commissioner of Social Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (awarding
15 fees in the amount of $10,544.72, the full amount requested by the plaintiff, after finding
16 the magistrate judge erred in cutting fees by one-third).
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Plaintiff requests that the Court award fees for the 57.8 hours her attorneys
expended in this case, and requests that the Court approve payment for the 2.2 hours that

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were expended in defending the motion for attorney’s fees (see Dkt. 24, 24-2, 26, p.7).
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Given the facts and circumstances of the matter herein, and based on the briefing,
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declarations and attorney time sheet, the Court concludes that the amount of time
incurred by plaintiff’s attorney in this matter is reasonable.

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 10

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Specifically, following a review of plaintiff’s request, the Court finds reasonable

2 plaintiff’s request for expenses in the amount of $25.14 and for attorney’s fees in the
3 amount of $11,403.60, representing 60 hours of work, for a total award of $11,428.74.
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CONCLUSION
Plaintiff’s request for $25.14 in expenses is granted.

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Plaintiff is awarded $11,403.60 in attorney’s fees, representing 60 hours of work,
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for a total award of $11,428.74, pursuant to the EAJA and consistent with Astrue v.
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Ratliff, 560 U.S. 586 (2010).
Plaintiff’s award is subject to any offset allowed pursuant to the Department of

11 Treasury’s Offset Program. See id. at 595-98. If it is determined that plaintiff’s EAJA
12 fees are not subject to any offset, or if there is a remainder after an offset, the check for
13 EAJA fees shall be made payable to plaintiff’s counsel, either by direct deposit or by
14 check payable to Eitan Kassel Yanich, based on plaintiff’s assignment of these amounts
15 to plaintiff’s attorney. The checks for EAJA fees and expenses shall be mailed to
16 plaintiff’s counsel at Law Offices of Eitan Kassel Yanich, PLLC, 203 Fourth Avenue
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East, Suite 321, Olympia, WA 98501.
Dated this 6th day of August, 2015.

A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S CONTESTED MOTION
FOR ATTORNEY’S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT - 11