Reed v. Colvin

Filing 24

ORDER granting 21 Motion for Attorney Fees - signed by Judge David W. Christel.(SH)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 ETHEL REED, 11 Plaintiff, 13 ORDER ON MOTION FOR ATTORNEY’S FEES v. 12 CASE NO. 3:16-CV-05675-DWC NANCY A BERRYHILL, Acting Commissioner of Social Security, 14 Defendant. 15 Plaintiff Ethel Reed filed a Motion for Attorney Fees Pursuant to 28 U.S.C. § 2412(D), 16 17 seeking attorney’s fees under the Equal Access to Justice Act (“EAJA”). Dkt. 21. Defendant 18 asserts her position in this matter was substantially justified and requests no fee be awarded. Dkt. 19 22. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, 20 the parties have consented to have this matter heard by the undersigned Magistrate Judge. See 21 Dkt. 7. 22 The Court concludes Defendant’s position was not substantially justified. Accordingly, 23 Plaintiff’s Motion is granted. 24 ORDER ON MOTION FOR ATTORNEY’S FEES 1 1 2 Background and Procedural History On February 21, 2017, the Court found the ALJ erred by failing to further develop the 3 record before concluding Plaintiff did not meet the requirements of Listing 12.05. Dkt. 18. The 4 Court found the error was harmful, reversed the ALJ’s decision, and remanded the case to the 5 Social Security Administration (“Administration”) for further consideration pursuant to sentence 6 four of 42 U.S.C. § 405(g). Id. 7 On May 19, 2017, Plaintiff filed the Motion. Dkt. 21. Defendant filed a Response, Dkt. 8 22, and Plaintiff filed a Reply. Dkt. 23. 9 Discussion 10 In any action brought by or against the United States, the EAJA states “a court shall 11 award to a prevailing party other than the United States fees and other expenses . . . unless the 12 court finds that the position of the United States was substantially justified or that special 13 circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). According to the United 14 States Supreme Court, “the fee applicant bears the burden of establishing entitlement to an award 15 and documenting the appropriate hours expended.” Hensley v. Eckerhart, 461 U.S. 424, 437 16 (1983). The government has the burden of proving its positions overall were substantially 17 justified. Hardisty v. Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010) (citing Flores v. Shalala, 18 49 F.3d 562, 569-70 (9th Cir. 1995)). Further, if the government disputes the reasonableness of 19 the fee, it also “has a burden of rebuttal that requires submission of evidence to the district court 20 challenging the accuracy and reasonableness of the hours charged or the facts asserted by the 21 prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th 22 Cir. 1992) (citations omitted). The Court has an independent duty to review the submitted 23 24 ORDER ON MOTION FOR ATTORNEY’S FEES 2 1 itemized log of hours to determine the reasonableness of hours requested in each case. See 2 Hensley, 461 U.S. at 433, 436-37. 3 I. 4 Substantially Justified In this matter, Plaintiff was the prevailing party because she received a remand of the 5 matter to the administration for further consideration. See Dkt. 18, 19. To award a prevailing 6 plaintiff attorney’s fees, the EAJA also requires finding the position of the United States was not 7 substantially justified. 28 U.S.C. § 2412(d)(1)(B). 8 The Supreme Court has held “substantially justified” means “‘justified in substance or in 9 the main’ -- that is, justified to a degree that could satisfy a reasonable person.” Pierce v. 10 Underwood, 487 U.S. 552, 565 (1988). A “substantially justified position must have a reasonable 11 basis both in law and fact.” Guiterrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (citing 12 Pierce, 487 U.S. at 565; Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995)). The Court “‘must 13 focus on two questions: first, whether the government was substantially justified in taking its 14 original action; and second, whether the government was substantially justified in defending the 15 validity of the action in court.’” Id. at 1259 (quoting Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 16 1988)). Thus, for the government to prevail, it must establish both the ALJ’s underlying conduct 17 and its litigation position in defending the ALJ’s error were substantially justified. Id. “[I]f ‘the 18 government’s underlying position was not substantially justified,’” the Court must award fees 19 and does not have to address whether the government’s litigation position was justified. Tobeler 20 v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quoting Meier v. Colvin, 727 F.3d 867, 872 (9th 21 Cir. 2013)). The Court notes the Administration does not have to prevail on the merits for the 22 Court to conclude the Administration’s position was substantially justified. See Kali, 854 F.2d at 23 334. 24 ORDER ON MOTION FOR ATTORNEY’S FEES 3 1 Here, the Court concluded the ALJ erred by failing to further develop the record before 2 concluding Plaintiff did not meet the requirements of Listing 12.05. Dkt. 18. At the 3 administrative hearing level, Plaintiff presented evidence she had a learning disorder, which 4 the ALJ ultimately found to be a severe impairment at Step Two of the sequential evaluation. 5 AR 25. Plaintiff also presented evidence she attended special education classes, did not 6 graduate from high school, and was unable to obtain a GED. AR 53, 70, 88-91. Finally, 7 Plaintiff presented a 2005 medical opinion by Dr. Luci Carstens, Ph.D., which recommended 8 Plaintiff undergo IQ testing. AR 383. On this record, the ALJ considered whether Plaintiff 9 satisfied the requirements of Listing 12.05, but concluded Plaintiff did not have “a valid 10 verbal, performance, or full scale IQ of 70 or less.” AR 26-27. Notably, the ALJ reached this 11 conclusion based on the absence of any IQ tests in the record, rather than by reference to a 12 valid IQ score greater than 70. As this Court previously explained, the ALJ’s failure to develop 13 the record prior to determining whether Plaintiff satisfied the criteria of Listing 12.05 was 14 harmful error and inconsistent with the Ninth Circuit’s holding in Garcia v. Comm’r, Soc. Sec. 15 Admin., 768 F.3d 925 (9th Cir. 2014). See Dkt. 18. 16 Defendant argues her position was substantially justified because there was no IQ score 17 in the record and the ALJ did not have a duty to develop the record. See Dkt. 22. In Garcia, the 18 Ninth Circuit held, when a case turns on whether a claimant has an intellectual disability and 19 relies on IQ scores, an ALJ has a duty to develop the record so that it includes a complete set of 20 IQ test results “[b]ecause the regulations clearly assert the importance of a complete IQ test 21 administration[.]” Garcia, 768 F.3d at 932. The ALJ found Plaintiff suffered from a severe 22 impairment of a learning disorder at Step Two. See Dkt. 18. At Step Three, the ALJ found 23 Plaintiff’s learning disorder did not equal Listing 12.05 because she did not have a valid IQ score 24 ORDER ON MOTION FOR ATTORNEY’S FEES 4 1 of 70 or below. The record, however, did not contain a complete set of IQ test results. Based on 2 Garcia, the ALJ’s failure to develop the record to include a complete set of IQ test results prior 3 to finding Plaintiff did not meet Listing 12.05 did not have a reasonable basis in law. Therefore, 4 the ALJ’s position was not substantially justified. See Meier, 727 F3d at 872 (there is a strong 5 indication the government’s position was not substantially justified when the agency’s decision 6 is unsupported by substantial evidence); Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998) 7 (“the defense of basic and fundamental errors . . . is difficult to justify”); Levi v. Colvin, 2016 8 WL 1322132, at *2 (E.D. Cal. Apr. 5, 2016) (“when the government violates its own regulations, 9 fails to acknowledge settled circuit case law, or fails to adequately develop the record, its 10 position is not substantially justified”). 11 The Administration has not shown substantial justification for the ALJ’s underlying 12 decision. Further, there are no special circumstances which render an EAJA award in this matter 13 unjust. Accordingly, the Court finds Plaintiff is entitled to attorney’s fees under the EAJA. See 14 Meier, 727 F.3d at 872; Li v. Keisler, 505 F.3d 913, 919 (9th Cir. 2007) (“[W]e have consistently 15 held that regardless of the government’s conduct in the federal court proceedings, unreasonable 16 agency action at any level entitles the litigant to EAJA fees.”); Tobeler, 749 F.3d at 834. 17 (“Because the government’s underlying position was not substantially justified, we award fees, 18 even if the government’s litigation position may have been justified.” (emphasis in original)). 19 20 II. Reasonableness of Fee Once the Court determines a plaintiff is entitled to a reasonable fee, “the amount of the 21 fee, of course, must be determined on the facts of each case.” Hensley, 461 U.S. at 429, 433 n.7. 22 Here, Defendant does not challenge the reasonableness of the fee. Further, based on the facts and 23 circumstances of this matter, and the briefing and attorney time sheet, the Court concludes the 24 ORDER ON MOTION FOR ATTORNEY’S FEES 5 1 amount of time incurred by Plaintiff’s attorney in this matter is reasonable. See Dkt. 21, 21-2, 212 3, 23, 23-2. Specifically, the Court finds Plaintiff’s request for attorney’s fees in the amount of 3 $7,321.84, representing 38 hours of work, reasonable. See Dkt. 23-2. 4 Conclusion 5 For the above stated reasons, the Court hereby grants Plaintiff’s Motion as follows: 6 Plaintiff is awarded attorney’s fees in the amount of $7,321.84, representing 38 hours of 7 work, pursuant to the EAJA and consistent with Astrue v. Ratliff, 560 U.S. 586 (2010). 8 The Acting Commissioner shall contact the Department of Treasury to determine if the 9 EAJA Award is subject to any offset. If the U.S. Department of the Treasury verifies to the 10 Office of General Counsel that Plaintiff does not owe a debt, the government shall honor 11 Plaintiff’s assignment of EAJA Award and pay the EAJA Award directly to Dellert Baird Law 12 Offices, PLLC. If there is an offset, any remainder shall be made payable to Plaintiff, based on 13 the Department of the Treasury’s Offset Program and standard practices, and the check shall be 14 mailed to Plaintiff’s counsel at Dellert Baird Law Offices, PLLC, P.O. Box 97301, Lakewood, 15 Washington 98497. 16 Dated this 7th day of July, 2017. A 17 18 David W. Christel United States Magistrate Judge 19 20 21 22 23 24 ORDER ON MOTION FOR ATTORNEY’S FEES 6

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