King v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Laurel D King, No. CV-22-00021-PHX-DWL

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s motion for attorneys’ fees pursuant to the 16 Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”) (Doc. 20) and affidavit in support 17 thereof (Doc. 21). For the following reasons, Plaintiff’s motion is granted. 18 BACKGROUND 19 I. The Agency Proceedings 20 On July 12, 2019, Plaintiff filed an application for disability and disability insurance 21 benefits, alleging disability beginning on November 12, 2017. (AR at 15, 28, 152.) The 22 Social Security Administration (“SSA”) denied Plaintiff’s application at the initial and 23 reconsideration levels of administrative review and Plaintiff requested a hearing before an 24 ALJ. (Id. at 152.) On December 7, 2020, the hearing took place. (Id. at 42-67.) On 25 January 8, 2021, the ALJ issued an unfavorable decision. (Id. at 152-66.) However, on 26 May 26, 2021, the Appeals Council remanded to the ALJ for further consideration. (Id. at 27 171-72.) The reason for the remand was that “numerous records about the claimant’s 28 functioning and work history, completed by the claimant and a third party, were not 1 considered or exhibited. On remand, this evidence should be considered and exhibited.” 2 (Id. at 173.) 3 On August 30, 2021, another hearing took place. (Id. at 68-95.) On September 22, 4 2021, the ALJ issued another unfavorable decision. (Id. at 15-28.) The Appeals Counsel 5 later denied review. (Id. at 2-4.) 6 The ALJ found that Plaintiff had not engaged in substantial, gainful work activity 7 since the alleged onset date and that Plaintiff had the following severe impairments: “lupus, 8 Hashimoto’s disease, cervical degenerative disc disease, depression/anxiety disorders, 9 obsessive-compulsive disorder (OCD) and post-traumatic stress disorder (PTSD).” (Id. at 10 18.)1 Next, the ALJ concluded that Plaintiff’s impairments did not meet or medically equal 11 a listing. (Id. at 18-20.) Next, the ALJ calculated Plaintiff’s RFC as follows: 12 [T]he claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except: The claimant could occasionally 13 climb ramps, stairs, ladders, ropes and scaffolds. The claimant could 14 frequently balance. The claimant could occasionally stoop, kneel, crouch and crawl. The claimant could frequently reach with the left upper extremity. 15 The claimant could frequently handle, finger and feel with the left upper 16 extremity. The claimant could have occasional exposure to extreme heat, extreme cold, unprotected heights and moving mechanical parts. The 17 claimant could perform simple and routine tasks. The claimant could make 18 simple work-related decisions. 19 (Id. at 20.) 20 As part of this RFC determination, the ALJ evaluated Plaintiff’s symptom 21 testimony, concluding that Plaintiff’s “statements concerning the intensity, persistence and 22 limiting effects of [her] symptoms are not entirely consistent with the medical evidence 23 and other evidence in the record for the reasons explained in this decision.” (Id. at 21-24.) 24 The ALJ also evaluated opinion evidence from various medical sources, concluding as 25 follows: (1) N. Shibuya, M.D., state agency reviewing physician (“persuasive”); (2) R. 26 Barricks, M.D., state agency reviewing physician (“persuasive”); (3) J. Zeuss, M.D., state 27

28 1 The ALJ also noted that Plaintiff had substance abuse disorder but concluded this impairment was non-severe. (AR at 18.) 1 agency reviewing physician (“persuasive”); and (4) Robin Herr, M.Ed. (“not persuasive”). 2 (Id. at 25.) Additionally, the ALJ noted that Plaintiff “was designated as disabled by the 3 Veteran’s Administration” but identified various reasons why this finding did not compel 4 a finding of disability for SSA purposes. (Id.) 5 Based on the testimony of a vocational expert, the ALJ concluded that although 6 Plaintiff was incapable of performing her past relevant work as a paralegal, writer/editor, 7 writer, or salesclerk, she was capable of performing other jobs that exist in significant 8 numbers in the national economy, including cleaner, assembler, small products, or laundry 9 worker. (Id. at 26-27.) Thus, the ALJ concluded that Plaintiff is not disabled. (Id. at 27- 10 28.) 11 II. The District Court Proceedings 12 Plaintiff presented one issue on appeal: whether “[t]he ALJ’s mental RFC [was] not 13 supported by substantial evidence because the ALJ failed to create a logical bridge between 14 the evidence and the mental RFC and failed to develop the record.” (Doc. 12 at 1, 8-15.) 15 Plaintiff advanced various arguments in support of her contention that the RFC was not 16 supported by substantial evidence, and Defendant argued that all of Plaintiff’s arguments 17 were meritless and/or waived. (Doc. 16 at 5-15.) 18 On March 20, 2023, the Court issued an order reversing the ALJ’s decision and 19 remanding for further consideration. (Doc. 18 at 16.) The Court interpreted Plaintiff’s 20 arguments as “broadly challenging the ALJ’s decision to credit and rely upon the opinions 21 of Dr. Zuess.” (Id. at 7.) The Court determined that “[o]n its face,” the ALJ’s analysis 22 “was compliant with the new regulations” because “the ALJ expressly considered the 23 consistency and supportability factors and explained why both enhanced the persuasive 24 value of Dr. Zuess’s opinions.” (Id. at 9.) However, “[w]hether the ALJ’s findings as to 25 the consistency and supportability factors [were] supported by substantial evidence [was] 26 a closer call.” (Id.) “[T]he Court disagree[d] with the Commissioner’s contention that 27 Plaintiff has waived any argument on these points.” (Id.) On the merits, the Court was 28 unpersuaded by Plaintiff’s “heavy emphasis on Dr. Zuess’s and the ALJ’s failure to discuss 1 the incident in August 2018 in which she was hospitalized due to a mental health crisis.” 2 (Id. at 9-12.) However, the Court determined that it was “unclear whether the ALJ 3 considered several significant medical records, which were not available to Dr. Zuess,” and 4 that although Dr. Zuess’s inability to consider records unavailable to him did not 5 “categorically undermine the persuasiveness of his opinions or make it impermissible for 6 the ALJ to have relied on his opinions,” “it was incumbent upon the ALJ to explain why 7 the newly available records were consistent with Dr. Zuess’s opinions.” (Id. at 12-13 8 [emphasis omitted]). The ALJ’s failure to do so was “where the ALJ’s analysis falter[ed],” 9 as “[t]he ALJ’s opinion [did] not acknowledge, let alone discuss the significance of, the 10 records from April 2020, May 2020, and September 2020 in which Plaintiff reported 11 experiencing significant mental health-related distress.” (Id. at 13.) The Court was 12 “unpersuaded” by the Commissioner’s argument that the Court could infer that the ALJ 13 considered those records and found them consistent based on the ALJ’s broad citation to 14 Exhibit 13F (a 200-page exhibit that happened to contain the April 2020, May 2020, and 15 September 2020 medical records at issue), as “the ALJ offered this non-specific reference 16 to Exhibit 13F for the purpose of showing that certain ‘mental status examinations’ resulted 17 in largely normal findings,” but the April 2020, May 2020, and September 2020 medical 18 records are “not the results of mental status examinations intended to measure Plaintiff’s 19 cognitive functioning—they are records of medical visits in which Plaintiff reported 20 experiencing significant mental health-related distress.” (Id. at 14.) “If the ALJ failed to 21 consider these records, this omission calls into question the validity of the ALJ’s broader 22 determination that Dr. Zuess’s medical opinions were ‘consistent with the record as a 23 whole’” and “also calls into question the ALJ’s RFC formulation.” (Id. at 14-15.) The 24 Court remanded the action to “serve the useful purpose of, at a minimum, allowing the ALJ 25 to clarify the seeming omissions identified” in the Court’s order. (Id. at 16.) 26 … 27 … 28 … 1 III. The EAJA Motion 2 On June 16, 2023, Plaintiff filed the pending motion seeking EAJA fees (Doc. 20) 3 and a supporting memorandum (Doc. 21). 4 On June 26, 2023, Defendant filed a response in opposition. (Doc. 22.) 5 On July 3, 2023, Plaintiff filed a reply. (Doc. 23.) 6 DISCUSSION 7 A “request for attorney’s fees should not result in a second major litigation.” Pierce 8 v. Underwood, 487 U.S. 552, 563 (1988). In most cases, when a Plaintiff prevails in a 9 Social Security appeal and requests EAJA fees, the parties agree that an award of fees is 10 appropriate and the sole dispute, if any, involves the amount of fees to be awarded. Here, 11 the Commissioner opposes an award of EAJA fees, arguing that “she was substantially 12 justified in finding a State agency physician’s prior administrative medical findings 13 (PAMFs) persuasive and defending that finding.” (Doc. 22 at 2.) The Commissioner 14 argues, in the alternative, that Plaintiff’s fee request is unreasonably high and should be 15 reduced. (Id.) 16 I. Entitlement To Fees 17 A. Legal Standard 18 The EAJA provides that “a court shall award to a prevailing party other than the 19 United States fees and other expenses . . . in any civil action (other than cases sounding in 20 tort) . . . brought by or against the United States . . . , unless the court finds that the position 21 of the United States was substantially justified or that special circumstances make an award 22 unjust.” 28 U.S.C. § 2412(d)(1)(A). “The ‘position of the United States’ includes both the 23 government’s litigation position and the underlying agency action giving rise to the civil 24 action.” Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). 25 In the Social Security context, the underlying agency action giving rise to the civil 26 action is the ALJ’s decision. Id. In resolving the question of entitlement to attorneys’ fees, 27 the Court should consider “only the procedural issues on which the district court reversed” 28 and “need not consider the Secretary’s position on any other questions” or “the ultimate 1 issue of disability.” Flores v. Shalala, 49 F.3d 562, 566 (9th Cir. 1995), as amended on 2 denial of reh’g (June 5, 1995). “It is the government’s burden to show that its position was 3 substantially justified.” Meier, 727 F.3d at 870. 4 To be “substantially justified,” the government’s litigation position and the 5 underlying agency action must have a “reasonable basis both in law and fact.” Pierce, 487 6 U.S. at 565; see also Ibrahim v. DHS, 912 F.3d 1147, 1167 (9th Cir. 2019) (en banc). A 7 determination that an ALJ’s decision “was unsupported by substantial evidence is therefore 8 a strong indication that the ‘position of the United States’ . . . was not substantially 9 justified.” Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005). It is “only a 10 decidedly unusual case in which there is substantial justification under the EAJA even 11 though the agency’s decision was reversed as lacking in reasonable, substantial and 12 probative evidence in the record.” Id. (internal quotation marks omitted). Because 13 “substantial evidence” is a “deferential . . . standard of review” and refers to “such relevant 14 evidence as a reasonable person might accept as adequate to support a conclusion,” a 15 finding that substantial evidence is lacking usually means “the government’s underlying 16 action was not substantially justified.” Meier, 727 F.3d at 872. 17 However, this is only a generality, and exceptions exist. Although the Ninth Circuit 18 “has been clear that when an agency’s decision is unsupported by substantial evidence it is 19 a strong indication that the position of the United States is not substantially justified, [it] 20 has never stated that every time [a] court reverses and remands the ALJ’s decision for lack 21 of substantial evidence the claimant should be awarded attorney’s fees.” Decker v. 22 Berryhill, 856 F.3d 659, 664 (9th Cir. 2017). Thus, “success on the merits is not dispositive 23 of an EAJA application.” Id. “That the government lost (on some issues) does not raise a 24 presumption that its position was not substantially justified.” Ibrahim, 912 F.3d at 1168. 25 B. Analysis 26 As the prevailing party, Plaintiff is entitled to attorneys’ fees unless the 27 Commissioner demonstrates that the government’s position “with respect to the issue on 28 which the court based its remand” was “substantially justified.” Flores, 49 F.3d at 566. 1 Thus, the question is whether the ALJ was substantially justified in determining that Dr. 2 Zuess’s medical opinions were consistent with the record as a whole and formulating the 3 RFC. If the ALJ’s decision (the government’s underlying position) was not substantially 4 justified, the Court must award fees and “need not address whether the government’s 5 litigation position was justified.” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). 6 See also Ibrahim, 912 F.3d at 1167 (“[W]e have consistently held that regardless of the 7 government’s conduct in the federal court proceedings, unreasonable agency action at any 8 level entitles the litigant to EAJA fees.”) (internal quotation marks omitted). 9 An ALJ is not substantially justified where she fails to support with “sufficient 10 specificity” how medical records support a consistency finding. Cf. Maske v. Comm’r of 11 Soc. Sec. Admin., 2020 WL 6562343, *3 (D. Ariz. 2020) (“The Court found, among other 12 things, that ‘the ALJ did not identify with sufficient specificity how Plaintiff's medical 13 records are inconsistent with Dr. Peachey's opinion’ and further found that the error was 14 ‘not harmless.’ The Ninth Circuit has recognized that an award of EAJA fees may be 15 premised on such an error.”). Where the ALJ “fail[s] to make the necessary connections 16 between the evidence and her conclusion, [t]he existence of ‘some evidence’ that could 17 support [the] ALJ’s decision, which the ALJ herself failed to identify or invoke, is 18 insufficient to establish that the ALJ’s decision was substantially justified.” Id. at *4. 19 In the response brief, the Commissioner seems to challenge the Court’s legal 20 conclusions. Although the Court specified in its order that it was “unpersuaded” by the 21 Commissioner’s argument that the Court could infer that the ALJ considered the April 22 2020, May 2020, and September 2020 medical records and found them consistent based 23 on the ALJ’s broad citation to Exhibit 13F (Doc. 18 at 14), the Commissioner argues again 24 in her response to the fees motion that “it could reasonably be inferred that [the ALJ] 25 considered the particular records at issue in finding Dr. Zuess’s PAMFs consistent with the 26 record as a whole.” (Doc. 22 at 6.) The Commissioner then asserts that “although this 27 Court ultimately reached a different conclusion, it acknowledged facts allowing the 28 inference that the ALJ’s evaluation of the PAMFs’ consistency was comprehensive and 1 sufficient.” (Id.) This argument is unpersuasive. If the Court had believed the facts of this 2 case supported the inference that the ALJ’s evaluation of the consistency factor was 3 sufficient, it would not have remanded. The Court reached a different conclusion because 4 that inference is not supportable. 5 The Commissioner’s argument that the ALJ’s decision was substantially justified 6 is, essentially, that the Court could have gone either way on this one. But that is not what 7 the Court meant when it said that the determination of whether the ALJ’s findings as to the 8 consistency and supportability factors were supported by substantial evidence presented a 9 “closer call.” (Doc. 18 at 9.) The Court determined that “it was incumbent upon the ALJ 10 to explain why the newly available records were consistent with Dr. Zuess’s opinions” and 11 that the ALJ’s analysis was flawed because it did “not acknowledge, let alone discuss the 12 significance of, the records from April 2020, May 2020, and September 2020 in which 13 Plaintiff reported experiencing significant mental health-related distress.” (Id. at 12-13.) 14 The deferential substantial-evidence standard directs a reviewing court to defer to the 15 ALJ’s finding even when another interpretation of the evidence is possible. That the 16 standard under which the Court reviewed the ALJ’s decision is deferential, yet the Court 17 still found that reversal was necessary, cuts against the Commissioner’s position on the 18 issue of EAJA fees. 19 Although the Court agrees with the Commissioner that “the question of substantial 20 justification in the context of the EAJA is a distinct question from . . . the ‘substantial 21 evidence’ standard” (Doc. 22 at 2, emphasis added), this observation fails to explain how 22 the standards vary, much less why that distinction compels the denial of fees here. 23 Although the standards are distinct, “significant similarity” exists between them. Meier, 24 727 F.3d at 872. “Substantial evidence” means “such relevant evidence as a reasonable 25 person might accept as adequate to support a conclusion,” and “substantial justification” 26 means “justified to a degree that could satisfy a reasonable person.” Id. 27 Thus, for the government’s position to be “substantially justified” even though the 28 ALJ’s decision lacked “substantial evidence,” this would need to be “a decidedly unusual 1 case.” Thangaraja, 428 F.3d at 874. Such “decidedly unusual” cases do exist. For 2 example, in May 2017, the Ninth Circuit decided two cases in which the question was 3 whether the government was substantially justified where the ALJ’s decision was justified 4 at the time it issued but new evidence that arose after the decision led the district court to 5 conclude the ALJ’s decision was not supported by substantial evidence. Decker, 856 F.3d 6 at 665; Gardner v. Berryhill, 856 F.3d 652, 657 (9th Cir. 2017). In both cases, the 7 “underlying agency action giving rise to the civil action,” i.e., the ALJ’s decision, was 8 substantially justified because the ALJ could not be faulted for failure to consider evidence 9 not available at the time of the ALJ’s decision.2 The remaining question was whether the 10 government’s litigation position was also substantially justified. In both cases, the 11 government opposed remand, but in only one of the two cases was the government 12 substantially justified. In Decker, because it was unclear under the existing law whether 13 the new evidence in that case (“two pages of blood test results, without further 14 explanation”) required remand, the government was substantially justified in opposing 15 remand. Decker, 856 F.3d at 665. But in Gardner, where the new evidence made it plain 16 that the ALJ’s decision could not be affirmed (because the only reasons the ALJ provided 17 for giving little weight to a particular doctor’s opinion were no longer viable in light of the 18 new evidence), the government lacked a reasonable basis for opposing remand. Gardner, 19 856 F.3d at 657. 20 Here, the Commissioner has not argued that any special circumstance makes this an 21 unusual case, and the Court cannot discern any. 22 “Because the government’s underlying position was not substantially justified,” the 23 Court “need not address whether the government’s litigation position was justified.” 24 Meier, 727 F.3d at 872. 25 II. Reasonableness Of The Fee Amount Requested 26 Having determined that Plaintiff is eligible for EAJA fees, the Court must determine 27

28 2 That is different from the case here, where the April 2020, May 2020, and September 2020 medical records were available to the ALJ at the time of the decision. 1 what fee is reasonable. Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161 (1990). “The most 2 useful starting point for determining the amount of a reasonable fee is the number of hours 3 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. 4 Eckerhart, 461 U.S. 424, 433 (1983); see also Jean, 496 U.S. at 161 (“[O]nce a private 5 litigant has met the multiple conditions for eligibility for EAJA fees, the district court’s 6 task of determining what fee is reasonable is essentially the same as that described 7 in Hensley.”). This is “now called the ‘lodestar’ method” of determining the 8 reasonableness of fees. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th 9 Cir. 2012). 10 The reasonableness of Plaintiff’s counsel’s hourly rates is not in dispute. 11 The parties dispute whether the amount of time Plaintiff’s counsel billed was 12 reasonable. As a preliminary matter, the reasonableness of the number of hours spent is 13 necessarily a case-specific determination, and it is improper to generalize from other cases 14 and impose “a de facto cap” on the number of hours compensable under the EAJA. Costa, 15 690 F.3d at 1134. The Ninth Circuit has emphasized that dubbing any Social Security case 16 “routine” would be “a misnomer” because the cases “are often highly fact-intensive and 17 require careful review of the administrative record, including complex medical evidence,” 18 such that two cases involving the same issues might nevertheless require different amounts 19 of work. Id. at 1134 n.1. Courts generally should defer to “the winning lawyer’s 20 professional judgment,” and if “the amount of time requested for a particular task is too 21 high,” the Court must explain why. Id. at 1136. 22 Plaintiff originally requested $9,616.71 for EAJA attorneys’ fees and $18.39 in 23 expenses. (Doc. 20 at 1.) The Commissioner challenges various billing entries that amount 24 to 2.2 hours total and then argues that “the duplicative work by multiple attorneys in this 25 case warrants a 9 to 25 percent reduction of the amount for which Plaintiff moves.” (Doc. 26 22 at 9-10.) In reply, Plaintiff asserts that the additional time (4.4 hours) that Plaintiff’s 27 counsel spent preparing the reply draft justifies adding $1,033.78 to the original request, 28 such that the total amount awarded should be $10,650.49 in fees and $18.39 in expenses. (Doc. 23 at 4.) 2 The Court has reviewed all of Plaintiff's counsel’s billing entries, including the || various billing entries the Commissioner identified as “purely clerical or secretarial tasks,” and finds no fault with any of the billing entries. The Court rejects the Commissioner’s 5 || challenge to these entries for the reasons set forth in the reply brief. Ud. at 2-3.) 6 Once again, the Court finds no fault with the fact that multiple attorneys and 7\|| paralegals collaborated on this case and recognizes that legal collaboration often requires 8 || multiple attorneys to review the same documents in order to contribute meaningfully to the 9|| drafting and editing process. Cf Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th || Cir. 2008) (when associates work on a case, the partner who supervises them must review 11 || the documents); Costa, 690 F.3d at 1136 (“[S]Jometimes ‘the vicissitudes of the litigation || process’ will require lawyers to duplicate tasks.”). The Court has rejected this argument 13 || many times, as noted in the citations in the reply brief (Doc. 23 at 3-4), and will not retread this well-worn ground with any further discussion. 15 Having prevailed entirely in the fees motion, Plaintiff is also entitled to the fees incurred in litigating it. Jean, 496 U:S. at 163 n.10. 17 Accordingly, 18 IT IS ORDERED that Plaintiff's motion for EAJA fees (Doc. 20) is granted and Plaintiff is awarded $10,650.49 in fees and $18.39 in expenses. 20 IT IS FURTHER ORDERED that if the government determines that Plaintiff does not owe a debt subject to offset under the Treasury Offset Program, 31 U.SC. § 3716(c), and the government agrees to waive the requirements of the Anti-Assignment Act, 31 23 || U.S.C. § 3727, the government shall pay the EAJA award to Plaintiffs counsel. If there is 24 || a debt owed under the Treasury Offset Program, the remaining EAJA award after offset 25 || will be paid by a check made out to Plaintiff but delivered to Plaintiffs counsel. 26 Dated this 4th day of December, 2023. 27 Lom ee” 28 f CC —— Dominic W. Lanza United States District Judge -ll-