Bryant v. Berryhill

• Court: District Court, N.D. California
• Decided: May 11, 2020
• Docket: 4:18-cv-01514
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROSALI DENISE BRYANT, Case No. 18-cv-01514-DMR

8 Plaintiff, ORDER GRANTING PLAINTIFF’S APPLICATION FOR AWARD OF 9 v. ATTORNEYS’ FEES PURSUANT TO EQUAL ACCESS TO JUSTICE ACT 10 ANDREW SAUL,1 Re: Dkt. No. 26 11 Defendant.

12 Plaintiff Rosali Bryant moves the court pursuant to the Equal Access to Justice Act 13 (“EAJA”), 28 U.S.C. § 2412, for an award of attorneys’ fees after securing a remand to the Social 14 Security Administration (“SSA”) on September 3, 2019. See Bryant v. Berryhill, No. 18-01514- 15 DMR, 2019 WL 4168911 (N.D. Cal. Sept. 3, 2019). Andrew Saul, the Commissioner of Social 16 Security, opposes the motion. For the reasons given below, the court grants Bryant’s motion. 17 I. BACKGROUND AND PROCEDURAL HISTORY 18 Bryant applied for Supplemental Security Income (“SSI”) benefits on July 31, 2014. The 19 SSA denied her application on October 9, 2014 and again on reconsideration on March 2, 2015. 20 She then appealed to an Administrative Law Judge (“ALJ”), who found Bryant not disabled on 21 March 6, 2017. The Appeals Council denied Bryant’s request for review on February 23, 2018. 22 She then filed this action, seeking judicial review on numerous grounds. 23 After review of both parties’ motions for summary judgment and the administrative record, 24 the court granted Bryant’s motion in part on September 3, 2019 and remanded the case to the SSA 25 for further proceedings. Bryant, 2019 WL 4168911, at *14. In its order, the court found that the 26 ALJ had erred in rejecting the lay witness testimony of Jeannie Smith and Sean Nunez of Napa 27 1 Valley Support Services and Bryant’s mother by failing to give germane reasons for disregarding 2 their observations of Bryant, as required by law. Id. at *9-11. As to Smith and Nunez, the ALJ 3 gave three reasons for giving them “little weight.” On review, the court concluded that two of the 4 three reasons were “merely statements of the law” and by themselves did not amount to “germane 5 reasons” to discount those witnesses’ observations of Bryant. Id. at *10. Regarding the third 6 reason, the court found that it “ha[d] little basis in the record and is not germane to these 7 witnesses.” Id. 8 The ALJ also gave “little weight” to Bryant’s mother’s statement, asserting that her 9 observations “do not outweigh the accumulated medical evidence” regarding Bryant’s limitations 10 and that her statement “lacks substantial support from objective findings in the record, which 11 demonstrates good daily activities including the claimant’s ability to work and attend school.” Id. 12 On review, the court concluded that these reasons did not satisfy the Ninth Circuit standard for 13 giving “little weight” to Bryant’s observations. Id. 14 The court also considered Bryant’s arguments that the ALJ erred in assessing her 15 credibility and determining that she does not meet or equal a mental impairment listing. As to 16 credibility, the court concluded that “[c]ritical parts of these issues are tied to the ALJ’s evaluation 17 of the lay witness statements, which provide further detail about how Bryant’s impairments impact 18 her ability to work and the extent of her limitations, about which the court has already found 19 error.” Id. at *12. Therefore, the court refrained from analyzing the ALJ’s credibility finding and 20 held that “it makes sense on remand for the ALJ to reevaluate the credibility determination upon 21 reevaluation of the lay witness statements.” Id. 22 With respect to the mental impairment listings, the Commissioner conceded that the ALJ 23 incorrectly applied an outdated version of the regulations but argued that any error was harmless. 24 The court found that Bryant’s argument regarding the listings “relies heavily on the statements by 25 lay witnesses Jeannie Smith and Sean Nunez.” Id. at *14. Given the ALJ’s error as to those 26 statements, the court concluded that it “cannot determine whether the ALJ’s error in applying the 27 incorrect version of the listings was harmless” and did not reach the merits of the argument, but 1 and 12.06 using the applicable version of the regulations.” Id. 2 Bryant timely filed the pending application for attorneys’ fees. [Docket No. 26.] 3 II. EAJA 4 The EAJA provides for an award of attorneys’ fees to prevailing parties in cases seeking 5 judicial review of federal agency action:

6 [e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other 7 expenses . . . incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency 8 action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of 9 the United States was substantially justified or that special circumstances make an award unjust. 10 28 U.S.C. § 2412(d)(1)(A). “Thus, eligibility for a fee award in any civil action requires: (1) that 11 the claimant be a ‘prevailing party’; (2) that the Government’s position was not ‘substantially 12 justified’; (3) [and] that no ‘special circumstances make an award unjust.’” Comm’r v. Jean, 496 13 U.S. 154, 158 (1990). 14 A. Prevailing Party Status 15 To be deemed the prevailing party under the EAJA, a plaintiff must demonstrate that “(1) 16 as a factual matter, the relief sought by the lawsuit was in fact obtained as a result of having 17 brought the action, and (2) there was a legal basis for the plaintiffs’ claim.” Andrew v. Bowen, 837 18 F.2d 875, 877-78 (9th Cir. 1988) (citation omitted). There is no dispute that Bryant qualifies as a 19 prevailing party because her suit secured a remand of the SSA’s final administrative decision. See 20 Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001) (“An applicant for disability benefits 21 becomes a prevailing party for the purposes of the EAJA if the denial of her benefits is reversed 22 and remanded regardless of whether disability benefits ultimately are awarded.”). 23 B. Substantial Justification 24 The government’s position is substantially justified if the government proves that it has a 25 “reasonable basis in law and fact.” Hardisty v. Astrue, 592 F.3d 1072, 1079 (9th Cir. 2010) 26 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); accord Yang v. Shalala, 22 F.3d 213, 27 217 (9th Cir. 1994) (citation omitted). This analysis focuses on “the particular issue on which the 1 claimant earned remand” and not on whether the government’s ultimate determination was 2 substantially justified. Hardisty, 592 F.3d at 1078 (citation omitted). “The ‘position of the United 3 States’ includes both ‘the position taken by the United States in the civil action’ as well as the 4 agency’s action or inaction ‘upon which the civil action is based.’” Gardner v. Berryhill, 856 F.3d 5 652, 656 (9th Cir. 2017) (quoting 28 U.S.C. § 2412(d)(2)(D)); accord Andrew, 837 F.2d at 878 6 (“[t]he term ‘position’ includes the underlying agency action and the legal position of the United 7 States during litigation.” (citation omitted)). 8 The Commissioner asserts that the government took a substantially justified position in its 9 determination that Bryant should not receive disability benefits because the ALJ’s treatment of the 10 lay witnesses’ statements had a reasonable basis in law and fact. The Commissioner addresses 11 each of the reasons offered by the ALJ to discount the lay witnesses’ statements, arguing that 12 “some evidence in the record” supports those reasons. The Commissioner also notes the existence 13 of Ninth Circuit authority that purportedly supports the position that the ALJ gave germane 14 reasons for rejecting Bryant’s mother’s testimony. Opp’n 4-5. Specifically, in giving Bryant’s 15 mother’s statement “little weight,” the ALJ stated in part that her “observations . . . do not 16 outweigh the accumulated medical evidence.” Bryant, 2019 WL at 4168911, at *10. The 17 Commissioner cites Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005), in which the Ninth 18 Circuit held that “[i]nconsistency with medical evidence” is a germane reason for discrediting the 19 testimony of lay witnesses. According to the Commissioner, “[e]ven if inconsistency with 20 medical evidence was not a sufficient reason in this case, controlling case law makes clear that it 21 can be a proper basis, and therefore the ALJ’s rejection of Plaintiff’s mother’s statement had a 22 reasonable basis in law.” Opp’n 4. 23 The court finds that the government’s position was not substantially justified. This action 24 was remanded to the SSA because the ALJ failed to satisfy well-established precedent that 25 requires an ALJ to take into account “[l]ay testimony as to a claimant’s symptoms or how an 26 impairment affects the claimant’s ability to work.” That precedent also makes clear that to 27 disregard such evidence, an ALJ “must give reasons that are germane to each witness.” See 1 4168911, at *10 (discussing then-applicable Social Security Ruling). While the Ninth Circuit held 2 in Bayliss that “[i]nconsistency with medical evidence” is a germane reason to discount lay 3 witness testimony, 427 F.3d at 1218, it is distinguishable from the present case. In Bayliss, the 4 plaintiff argued that the ALJ “improperly rejected aspects of testimony provided by her friends 5 and family members” because he “accepted the testimony . . . that was consistent with the record 6 of [the plaintiff’s] activities and the objective evidence in the record” and “rejected portions of 7 their testimony that did not meet this standard.” 427 F.3d at 1218. The court found that 8 “[i]nconsistency with the record” was a germane reason to reject certain testimony, because the 9 ALJ’s “rejection of certain testimony was supported by substantial evidence.” Id. In contrast, the 10 ALJ here did not explain or identify inconsistencies between Bryant’s mother’s statement and the 11 medical evidence; instead, he concluded that “[o]verall, [Bryant’s mother’s] statement lacks 12 substantial support from objective findings in the record, which demonstrates good daily activities 13 including the claimant’s ability to work and attend school.” Bryant, 2019 WL 4168911, at *10. 14 As discussed at length in the opinion, the ALJ’s statement about Bryant’s activities and 15 functioning “ha[d] little basis in the record” and “minimize[d] the extent to which Bryant required 16 accommodations to work and attend school.” See id. Therefore, contrary to the Commissioner’s 17 argument, the ALJ’s treatment of Bryant’s mother’s statement did not have a “reasonable basis in 18 law.” The ALJ’s failure to provide legally sufficient reasons for discounting the lay witnesses’ 19 statements impacted this court’s ability to analyze Bryant’s credibility and listings arguments, thus 20 necessitating further proceedings and delaying the determination of Bryant’s claim. The Ninth 21 Circuit has stated that it “will be only a decidedly unusual case in which there is substantial 22 justification under the EAJA even though the agency’s decision was reversed as lacking in 23 substantial evidence in the record.” Decker v. Berryhill, 856 F.3d 659, 664 (9th Cir. 2017) 24 (ellipses omitted) (quoting Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013) (quotation 25 omitted)). Under these circumstances, the court finds that the government’s position was not 26 substantially justified and no special circumstances appear to make an award unjust. Therefore, 27 Bryant is entitled to an award of attorneys’ fees under the EAJA. III. ATTORNEYS’ FEES 1 When awarding a party attorneys’ fees pursuant to the EAJA, the court must determine the 2 reasonableness of the fees sought. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). This 3 inquiry generally entails determining “the number of hours reasonably expended on the litigation 4 multiplied by a reasonable hourly rate.” Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 5 (1983)). An award may be reduced if the movant provided inadequate documentation of the fees 6 requested, the hours spent by counsel were unreasonable, or the movant achieved “limited 7 success” in the litigation. Id. at 1146-47 (citing Hensley, 461 U.S. at 433-34, 436-37). 8 The Commissioner does not contest the statutorily mandated hourly rate adjusted for cost 9 of living by which Bryant calculates her attorneys’ fees -- $201.60 per hour in 2018 and $204.25 10 per hour in 2019.2 See 28 U.S.C. § 2412(d)(2)(A); Sorenson, 239 F.3d at 1148. Nor does the 11 Commissioner dispute the reasonableness of the hours requested by co-counsel David J. Linden. 12 However, the Commissioner asserts that counsel Ralph Wilborn failed to exercise proper billing 13 judgment and seeks compensation for “unreasonably excessive hours to work on this routine 14 Social Security disability case.” Opp’n 7. According to the Commissioner, Wilborn spent too 15 much time reviewing the administrative record as well as the record in this case, researching the 16 mental impairment listings, and drafting the reply brief. The Commissioner asserts that Wilborn 17 has considerable experience handling Social Security disability cases in federal court and argues 18 that “[f]or such an accomplished practitioner of Social Security disability law, this case was quite 19 simple, and did not warrant 42.5 hours of work to write two briefs.” Id. The Commissioner cites 20 a laundry list of cases in which other courts have reduced Wilborn’s fee requests and contends that 21 the court should award Bryant no more than $7,309.59 in attorneys’ fees for both Linden and 22 Wilborn. Id. at 7-8, 10 n.5. 23 “Social security cases are fact-intensive and require a careful application of the law to the 24 testimony and documentary evidence, which must be reviewed and discussed in considerable 25 26 2 Bryant contends that the statutory maximum hourly rate under the EAJA for work performed in 27 2019 is $204.25, but the hourly rate for that time period is actually $205.25. See 1 detail.” Patterson v. Apfel, 99 F.Supp.2d 1212, 1213 (C.D. Cal. 2000). Notwithstanding the 2 |} Commissioner’s argument that this case was “quite simple,” Bryant challenged the ALJ’s decision 3 on numerous grounds and the court remanded the matter for further proceedings on three of those 4 || grounds. 5 Moreover, although “a district court will always retain substantial discretion in fixing the 6 amount of an EAJA award,” Jean, 496 U.S. at 163, a reduction of fees greater than 10 percent 7 requires “specific” and “persuasive” reasons from opposing counsel. Moreno v. City of 8 Sacramento, 534 F.3d 1106, 1112 (allowing a small reduction of no more than a 10 percent at the 9 || court’s discretion). The Commissioner’s request would result in a nearly 30 percent reduction in 10 || the amount of fees requested by Bryant’s counsel and appears to be based solely on defense 11 counsel’s opinion about the amount of time that Wilborn should have spent on the case. 12 || Additionally, the Ninth Circuit has instructed that courts should generally “defer to the winning 13 lawyer’s professional judgment as to how much time he was required to spend on the case.” Jd. at 14 1112. Having carefully reviewed the time entries, the court finds that the number of hours claimed 3 15 are not excessive. [See Docket Nos. 27-1 (Linden Decl., Nov. 25, 2019); 27-2 (Wilborn Decl., a 16 Nov. 25, 2019).] Accordingly, it awards Bryant $10,040.19, representing $8,977.82 for 44.5 hours 3 17 of work by Wilborn and $1,062.37 for 5.25 hours of work by Linden. The court also concludes 18 that Bryant is entitled to fees incurred in preparing the reply brief for this motion. Jean, 496 U.S. 19 || at 161. Bryant’s request for $1,225.50 for six additional hours of work on this fees motion is 20 reasonable. [See Docket No. 29-1 (Wilborn Decl., Dec. 17, 2019).] 21 || IV. CONCLUSION 22 For the foregoing reasons, Bryant’s motion for an award of attorneys’ fees is granted in the 23 amount of $11,265.69.

25 IT IS SO ORDERED. fs 26 || Dated: May 11, 2020 5 <

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