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rejecting Defendant's argument that plaintiff cannot seek compensation for work prior to filing the action
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CV 15-535-E
03-04-2016
VERNA GAIL GRIFFIN, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER RE: PLAINTIFF'S PETITION FOR ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT
INTRODUCTION
On December 28, 2015, Plaintiff's counsel filed a "Petition for Attorney Fees, Costs, and Expenses Under the Equal Access to Justice Act" (the "Petition"), requesting $6,262.60 in fees and $30 in costs. On February 3, 2016, Defendant filed an opposition to the Petition (the "Opposition"), arguing that the request should be denied or, alternatively, that fees and costs should be reduced, and that the award should be made payable to Plaintiff's counsel only if the award is not subject to any offseting pre-existing debt to the United States. On February 5, 2016, counsel for Plaintiff filed a reply ("Reply"). The Reply requests an additional $950 in fees for five hours of attorney time spent preparing the Reply. The Court has taken the matter under submission without oral argument. See Fed. R. Civ. P. 78(b); L.R. 7-15; Minute Orders filed January 4, 2016 and February 4, 2016.
As discussed below, the Petition is granted in part. The government's position was not substantially justified. The fees requested are reasonable, except for four of the five hours requested for the preparation of the Reply and 0.2 hours of paralegal time. Absent offset, the fees may be paid directly to counsel for Plaintiff.
BACKGROUND
Plaintiff filed a complaint on January 23, 2015, seeking review of the Commissioner's denial of benefits. The parties filed a consent to proceed before a United States Magistrate Judge on March 19, 2015.
After reviewing the parties' cross-motions for summary judgment, the Court remanded the matter for further administrative proceedings. The Court found that the Administrative Law Judge ("ALJ") materially mischaracterized the record in evaluating the opinion of Dr. Conwisar, and gave legally insufficient reasons for rejecting Plaintiff's testimony regarding her alleged symptoms. See Memorandum Opinion and Order of Remand, filed September 30, 2015; see also Plaintiff's Motion for Summary Judgment, filed July 15, 2015, at 9-13. /// ///
Defendant's motion for summary judgment had argued that the ALJ properly disregarded Dr. Conwisar's opinion as allegedly: (1) inconsistent with his previous opinions regarding Plaintiff's functional capacity; (2) based "mostly" on Plaintiff's own self-reports of knee pain which Dr. Conwisar did not examine or treat, and which assertedly were contradicted by the Agreed Medical Examiner's examination just 17 days prior. See Defendant's Motion for Summary Judgment, filed September 14, 2015, at 4-6. Defendant also had argued that the ALJ properly disregarded Plaintiff's subjective complaints as purportedly inconsistent with the medical evidence and because Plaintiff assertedly received only "routine and conservative treatment" (a reason on which the ALJ did not rely in rejecting Plaintiff's credibility). Id. at 8-9; compare A.R. 19 (ALJ's reasoning).
APPLICABLE LAW
The Equal Access to Justice Act ("EAJA") provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded . . . , incurred by that party in any civil action . . . , including proceedings for judicial review of an agency 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) (emphasis added). "[F]ees and other expenses" include "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A).
"It is the government's burden to show that its position was substantially justified or that special circumstances exist to make the award unjust." Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). "'Substantially justified' means "'justified in substance or in the main' — that is, justified to a degree that could satisfy a reasonable person." Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). In other words, where "reasonable people could differ as to the appropriateness of the contested action," the government's position is substantially justified. Pierce v. Underwood, 487 U.S. at 565 (internal brackets, quotations and citations omitted). Substantial justification requires that the government's position have a "reasonable basis both in law and in fact." Id. at 565-66; see also Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 n.6 (1990); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (substantial justification is equated with reasonableness).
In viewing the conduct of the government, "the remedial purpose of the EAJA is best served by considering the totality of the circumstances." United States v. Gavilan Joint Community College Dist., 849 F.2d 1246, 1248 (9th Cir. 1988) (citation omitted). The Court must examine both the government's pre-litigation and litigation positions. Id.; see Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) ("The government's position must be 'substantially justified' at each stage of the proceedings.") (quotations and citation omitted). In the Social Security context, the government's position includes "both the government's litigation position and the underlying agency action giving rise to the civil action." Meier v. Colvin, 727 F.3d 867, 870-72 (9th Cir. 2013); see also 28 U.S.C. § 2412(d)(2)(D) ("'position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based . . ."). In evaluating the reasonableness of the government's position, the Court must "focus on the remand issue[s] rather than the ultimate disability determination." Lewis v. Barnhart, 281 F.3d 1081, 1086 (9th Cir. 2002). When the ALJ's decision is the final decision of the Administration, the ALJ's decision is the "action or failure to act by the agency upon which the civil action is based," and so is the decision reviewed for substantial justification. Meier v. Colvin, 727 F.3d at 870-72.
When an error in the administrative decision was not substantially justified, the Second, Third, and Ninth Circuits require an award of EAJA fees regardless of whether the government's /// subsequent litigation position was substantially justified. See Tobeler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014) ("Because the government's underlying position was not substantially justified, we award fees, even if the government's litigation position may have been justified.") (emphasis original); Meier v. Colvin, 727 F.3d at 872-73 (awarding EAJA fees where ALJ's position was not substantially justified; declining to address whether the government's litigation position was substantially justified); Morgan v. Perry, 142 F.3d 670, 685 (3d Cir. 1998), cert. denied, 525 U.S. 1070 (1999) (if either the government's pre-litigation or litigation position is not substantially justified, the prevailing party should be awarded EAJA fees); Smith by Smith v. Bowen, 867 F.2d 731, 734 (2d Cir. 1989) (court must award EAJA fees where underlying government position is not substantially justified, "even if Government's litigation position is itself reasonable when considered alone").
A lack of substantial justification should not be confused with a lack of substantial evidence to support an administrative decision. "[W]hen an agency's decision is unsupported by substantial evidence, it is a strong indication that the position of the United States is not substantially justified." Campbell v. Astrue, 736 F.3d 867, 868-69 (9th Cir. 2013) ("Campbell"). In Campbell, however, the Ninth Circuit stressed that it has never held that a claimant must be awarded EAJA fees every time an ALJ's decision is reversed for lack of substantial evidence. Id.; see also Santos v. Colvin, 2014 WL 108195, at *3 n.3 (W.D. Wash. Jan. 9, 2014) (discussing the limited nature of the holding in Campbell).
This statement must be qualified in at least one respect. The EAJA permits the denial of fees when the court finds "that special circumstances make an award unjust." See 28 U.S.C. § 2412(d)(1)(A). In the present case, Defendant fails to argue and it fails to appear that any "special circumstances make an award unjust."
The Fourth, Fifth, Seventh, and Tenth Circuits appear to disagree somewhat with the Second, Third and Ninth Circuits on this issue. See DaSilva v. U.S. Citizenship & Immigration Services, 599 Fed. App'x 535, 539 (5th Cir. 2014) (government may justify its position "merely by showing that there was a 'genuine dispute' or that 'reasonable people could differ' as to the agency action") (citation omitted); United States v. 515 Granby, LLC, 736 F.3d 309, 315-17 (4th Cir. 2013) (stating that unreasonable pre-litigation position generally will lead to award of attorney's fees, even if government's litigation position was reasonable, but refusing to adopt a bright-line rule requiring fees in such cases); Hackett v. Barnhart, 475 F.3d 1166, 1174 (10th Cir. 2007) ("Hackett") (refusing to state categorically that a reasonable litigation position by the government can never "cure" unreasonable agency action); Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994) ("the fact that the government's litigating position was substantially justified does not necessarily offset prelitigation conduct that was without a reasonable basis") (emphasis added); see also Evans v. Colvin, 2016 WL 362438, at *1 (10th Cir. Jan. 29, 2016) (reaffirming Hackett).
ANALYSIS
I. Under Current Ninth Circuit Law , Plaintiff is Entitled to EAJA Fees.
In remanding the case for further administrative proceedings, the Court found: (1) the ALJ materially mischaracterized the record in evaluating the opinion of Dr. Conwisar, a treating physician; (2) the ALJ's adverse credibility determination did not account for Plaintiff's complaints of disabling side effects from her pain medication, and the ALJ reasoned, without any support in the record, that Plaintiff had not pursued all available pain treatment modalities. See Memorandum Opinion and Order of Remand at 10-14, 17-20.
Where an "ALJ rejected a treating physician's opinion in favor of a non-treating physician's opinion without providing clear and convincing reasons, and committed several errors in assessing [the claimant's] residual functional capacity . . . [i]t follows a fortiori that the government's defense of the ALJ's procedural errors was not substantially justified." Shafer v. Astrue, 518 F.3d 1067, 1071-72 (9th Cir. 2008) ("Shafer") (citing Corbin v. Apfel, 149 F.3d at 1053); see also Peck v. Social Security Administration, 379 Fed. App'x 573 (9th Cir. 2010) (in affirming denial of EAJA fees, distinguishing the case from Shafer because "the ALJ here did not fail to do anything that he was supposed to do"). Similarly, the government's pre-litigation position lacked a reasonable basis in fact where the ALJ "mis-character[ized] [] the medical evidence" and lacked a reasonable basis in law where the ALJ "failed to inquire adequately" and "take adequate account" of the evidence. Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996); compare Lewis v. Barnhart, 281 F.3d at 1084-86 (where an ALJ mischaracterized evidence concerning the claimant's past relevant work, the government's position, though incorrect, was substantially justified in law and fact because the ALJ properly could rely on a claimant's testimony to define past relevant work, and other statements in the record provided some support for the ALJ's determination; there was no claim that the ALJ failed to do anything the ALJ was supposed to do). In the present case, the ALJ's material mischaracterizations of the record lacked substantial justification.
In Shafer, the ALJ rejected the treating physician's opinion because a non-examining medical expert opined that the treating physician's opinion "was not consistent with his treatment notes and with the objective evidence of record." Shafer, 518 F.3d at 1069 & n.3. The ALJ's reasoning was "factually incorrect," because the expert "did not comment upon, let alone contradict" the treating physician's assessment. Id. at n.3.
The ALJ also unreasonably erred in failing expressly to consider the alleged side effects of Plaintiff's pain medications. See Varney v. Secretary, 846 F.2d 581, 585 (9th Cir. 1988) (an ALJ may not disregard testimony about the side effects of medication unless the ALJ makes "specific findings similar to those required for excess pain testimony"); 20 C.F.R. § 404.1529(c)(3)(iv) ("We will consider . . . side effects of any medication you take or have taken to alleviate your pain or other symptoms"); Social Security Ruling 96-7p (mandating consideration of side effects of pain medication). Accordingly, the government's pre-litigation position was not substantially justified, and an award of fees is required. Cf. Sampson v. Chater, 103 F.3d at 921 ("A finding that an agency's position was substantially justified when the agency's position was based on violations of . . . the agency's own regulations[] constitutes an abuse of discretion.") (citations omitted).
Defendant suggests that the government's litigation position was reasonable in part because the ALJ assertedly could have rejected Dr. Consiwar's opinions in reliance on the alleged inconsistencies with the medical records and the degree to which Dr. Conwisar purportedly relied on Plaintiff's subjective complaints. See Opposition, p. 4 (citing Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) and Morgan v. Comm'r, 169 F.3d 595, 599 (9th Cir. 1999)). Defendant's suggestion, like Defendant's motion for summary judgment, overlooks or minimizes the ALJ's material mischaracterizations of the record and the other errors discussed above. In any event, a determination that the government's litigation position was reasonable would not change the result herein. See Meier v. Colvin, 727 F.3d at 872-73 ("Because the government's underlying position was not substantially justified, we need not address whether the government's litigation position was justified"); accord Tobeler v. Colvin, 749 F.3d at 832; Schneider v. Colvin, 2016 WL 500595, at *2 (E.D. Cal. Feb. 9, 2016); Derr v. Colvin, 2015 WL 9268455, at *5 (D. Ariz. Dec. 21, 2015) (same; stating that consideration of the government's position in litigation in the present case would "inevitably result in the conclusion that the government's defense of the ALJ's errors is not substantially justified" where "Defendant's brief on the merits defended the ALJ's improper rejection of [the treating physician's] opinion and Plaintiff's credibility . . . and essentially restated the same reasons cited in the ALJ's decision").
II. A Reduced Fee Award is Appropriate.
Having determined that the government's position was not substantially justified, the Court considers the reasonableness of the fees requested. Plaintiff requests $6,262.60 in fees for time spent before the Court, at a rate of $190 per hour for 29.5 hours of attorney time, and at a rate of $137 per hour for 4.8 hours of paralegal time, plus $30 in in-house "postage fees" and time to effect service based on what a private process server would charge, and another $950 in fees for five hours of attorney time spent preparing the Reply. See Petition at 2; Declaration of Vijay J. Patel at ¶¶ 7-9; Exhibit 1 (billing itemization); Reply at 2.
Under the EAJA, attorney fees are set at the market rate, but capped at $125 per hour, subject to a cost of living adjustment. See 28 U.S.C. § 2412(d)(2)(A). The EAJA explicitly permits the court, in its discretion, to reduce the amount awarded to the prevailing party to the extent the party "unduly and unreasonably protracted the final resolution" of the case. 28 U.S.C. §§ 2412(d)(1)(C), 2412(d)(2)(D). When considering eligibility for a fee award under the EAJA, a court should "treat[] a case as an inclusive whole, rather than as atomized line-items." Commissioner, I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990); see also In re Southern California Sunbelt Developers, Inc., 608 F.3d 456, 463 (9th Cir. 2010). "[A]bsent unreasonably dilatory conduct by the prevailing party in 'any portion' of the litigation, which would justify denying fees for that portion, a fee award presumptively encompasses all aspects of the civil action." Commissioner v. Jean, 496 U.S. at 161; Hensley v. Eckerhart, 461 U.S. 424, 435 (1983) ("[T]he fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. . . . The result is what matters.") (internal citation omitted).
Defendant contends that the hours requested are excessive "as the only issues presented are commonplace for disability cases," and assertedly "exceed[] the time required to process entire routine social security cases with similarly mundane issues." See Opposition at 7. Defendant requests the following reductions from a fee award: (1) five hours of attorney time from the original hours request "to ensure that Plaintiff's requests are in line with what other courts have found reasonable"; (2) 6.9 hours of attorney time equating to a 23 percent reduction of time spent preparing Plaintiff's motion for summary judgment because the motion exceeded the allowable page length by three pages (i.e., the motion was 13 pages long); (3) no recovery of service costs as Plaintiff has not documented what service costs were actually incurred; and (4) 2.3 hours of paralegal time for time spent prior to the filing of the complaint, as assertedly non- recoverable. See Opposition at 8-9.
The Court has reviewed the entire record. There is no indication in the record that Plaintiff's counsel engaged in dilatory conduct during any part of counsel's representation. Nor does it does appear that the time spent preparing Plaintiff's motion for summary judgment was excessive or otherwise unnecessary in light of the needs of this case. Hensley v. Eckerhart, 461 U.S. at 434. Counsel began representing Plaintiff after the ALJ's adverse decision (see A.R. 1-4; Exhibit 3 (retainer agreement)), and had to acquaint himself with a 1,435 page administrative record. Consequently, it is understandable that 24.3 hours of attorney time were required to produce Plaintiff's motion for summary judgment.
The Court rejects Defendant's apparent suggestion that Plaintiff's counsel must have spent more time preparing a 13 page brief than counsel would have spent preparing a brief in compliance with the Court's 10 page limitation. Cf. Blaise Pascal, Provincial Letters: Letter XVI (1657) ("I would have written a shorter letter, but I did not have the time"). --------
Except as otherwise discussed herein, the Court finds that the hours reported and fees requested in the Petition are reasonable. Plaintiff's original request for compensation for 27.5 hours of attorney time and 4.8 hours of paralegal time (exclusive of time spent litigating the EAJA request) falls within the range of reasonable hours generally reported. See Costa v. Commissioner, 690 F.3d 1132, 1136 (9th Cir. 2012) ("Many district courts have noted that twenty to forty hours is the range most often requested and granted in social security cases.") (citation omitted).
Because Plaintiff is entitled to reasonable fees for time spent litigating the EAJA fee request, the Court will allow a reasonable fee for preparation of the Petition. See Commissioner, I.N.S. v. Jean, 496 U.S. at 165-66. The Court finds that the 2.0 hours counsel spent in litigating the EAJA request and preparing the Petition are reasonable. However, the fee requested for an additional five hours of time to prepare the Reply is not reasonable. See Hensley v. Eckerhart, 461 U.S. at 434 (counsel's hours "that are excessive, redundant, or otherwise unnecessary" should be excluded); Tahara v. Matson Terminals, Inc., 511 F.3d 950, 956 (9th Cir. 2007) (upholding district court's refusal to award fees for duplicative work). The Reply responded to the Opposition but was largely duplicative of the Petition and of Plaintiff's Motion for Summary Judgment. The duplication (which reasonably should not have required much time) did not assist the Court. For instance, Sections 1 and 2 of the Reply duplicated the Petition's discussion of the burden of proof. Compare Reply at 4 with Petition at 5. The discussion of the medical evidence in Section 2 of the Reply duplicated discussion from the Motion for Summary Judgment and addressed a contention upon which the Court did not remand. Compare Reply at 5 with Plaintiff's Motion for Summary Judgment at 5, 7-8. The discussion of the ALJ's credibility determination in Section 2 of the Reply repeated the Court's analysis from the Memorandum Opinion and Order of Remand and Plaintiff's related argument from Plaintiff's Motion for Summary Judgment. Compare Reply at 5-6 with Memorandum Opinion and Order of Remand at 19 and Plaintiff's Motion for Summary Judgment at 12. Finally, Section 4 of the Reply offered no new authority in support of Plaintiff's argument that fees should be made payable to counsel. Compare Reply at 8-9 with Petition at 13-15. Accordingly, the Court finds that Plaintiff is entitled to only one additional hour of fees for the preparation of the Reply.
Regarding paralegal time, the Court finds appropriate a reduction of 0.2 hours of paralegal time from the 0.3 hours reported as time spent preparing the proof of service for the complaint. Three tenths of an hour is excessive for the simple task performed. Otherwise, the fees requested for paralegal time, incurred in preparing the initial filing with the Court (and not in connection with Plaintiff's administrative proceedings), are reasonable. Contrary to Defendant's argument, Plaintiff is not precluded from seeking compensation for work performed prior to filing the action. See, e.g., Thompson v. Astrue, 2012 WL 5949218, at *2 (E.D. Cal. Nov. 28, 2012) (rejecting similar argument); compare Melkonyan v. Sullivan, 501 U.S. 89, 97 (1991) (under certain circumstances, attorneys fees may be recoverable for work done at the administrative level following a remand) (citation omitted); Mendenhall v. NTSB, 213 F.3d 464, 469 (9th Cir. 2000), overruled on other grounds, Gonzalez v. Arizona, 677 F.3d 383 (9th Cir. 2012) (en banc) (the EAJA does not permit fees for work conducted during pre-litigation administrative proceedings; emphasis added).
The Court also finds that Plaintiff is entitled to the $30 in costs for service of process. See L.R. 54-3.2 (identifying fees for service of process as a taxable cost); Brazile v. Colvin, 2015 WL 9239723, at *3 (C.D. Cal. Dec. 16, 2015) (finding that $30 for filing and service of the complaint was reasonable); Samsaguan v. Colvin, 2014 WL 4988205, at *4 (C.D. Cal. Oct. 6, 2014) (same for $60 service fee); see also Fambrough v. Commissioner of Social Security, 2016 WL 500605, at *4 (E.D. Cal. Feb. 9, 2016) (finding that Plaintiff was entitled to $30 in unspecified costs).
In sum, Plaintiff is entitled to the following:
| 30.5 hours of attorney time at $190/hour | $5,795.00 |
| 4.6 hours of paralegal time at $137/hour | 630.20 |
| Costs | 30.00 |
|---|---|
| Total | $6,455.20 |
An EAJA fee award generally is payable to the prevailing litigant rather than to the prevailing litigant's attorney. See Astrue v. Ratliff, 560 U.S. 586, 596-97 (2010). However, Plaintiff assigned her EAJA fees to her counsel. See Petition, Exhibit 3 (retainer agreement containing assignment at ¶ 4). Defendant concedes that if Plaintiff does not owe a government debt that qualifies for an offset, payment may be made in the name of the attorney based on the government's discretionary waiver of the Anti-Assignment Act, 31 U.S.C. § 3727. See Opposition at 10; see also United States v. Kim, 806 F.3d 1161, 1169-70 (9th Cir. 2015) (to the extent the Anti-Assignment Act may apply to EAJA fee awards, "[i]t is well established . . . that the Government can waive coverage of the Anti-Assignment Acts.") (citation omitted). The fees therefore are payable to Plaintiff's counsel, as Plaintiff's assignee, absent offset by reason of any outstanding federal indebtedness owing from Plaintiff under 31 U.S.C. section 3716. See, e.g., Fambrough v. Commissioner of Social Security, 2016 WL 500605, at *5 (finding that payment could be made directly to counsel if Plaintiff does not owe a government debt and the government waives the Anti-Assignment Act's requirements; citing district court cases finding same); Yesipovich v. Colvin, 2015 WL 5675869, at *8 (N.D. Cal. Sept. 28, 2015) (same).
CONCLUSION AND ORDER
For all the foregoing reasons, IT IS ORDERED that Plaintiff is awarded attorney fees and costs under the EAJA in the amount of $6,455.20. If the government determines that Plaintiff does not owe a federal debt, then the government, shall cause the payment of the award to be made directly to THE LAW OFFICES OF LAWRENCE D. ROHLFING pursuant to the assignment executed by Plaintiff. This award is without prejudice to the rights of Plaintiff and Plaintiff's counsel to seek attorney fees under 42 U.S.C. § 406, if appropriate.
DATED: March 4, 2016.
/s/_________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE