1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kathleen Mary Quiala, No. CV-20-01593-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Kathleen Mary Quiala (“Plaintiff”) has filed a Motion for Attorney’s Fees 16 under the Equal Access to Justice Act (“EAJA”) (Doc. 29).1 The Motion seeks an award 17 of $12,203.30 in fees. (Id. at 2). Plaintiff’s counsel also requests $400.00 in costs expended 18 for the complaint filing. (Id. at 3). 19 I. Background 20 On February 10, 2022, the Court issued an Order reversing the Administrative Law 21 Judge’s (“ALJ”) decision in this case and remanding the case for further proceedings. 22 (Doc. 27). In that Order, the Court found that the ALJ erred by not adequately explaining 23 the reason she omitted Plaintiff’s mental limitations in her RFC determination. (Id. at 13). 24 Accordingly, the Court reversed and remanded to the ALJ for further proceedings. (Id.) 25 II. Legal Standard 26 In any action brought by or against the United States, except one sounding in tort, 27 the EAJA provides that “a court shall award to a prevailing party other than the United 28 1 The motion is briefed. (Docs. 32; 33). 1 States fees and other expenses . . . unless the court finds that the position of the United 2 States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A); Tobeler v. Colvin, 749 F.3d 3 830, 832 (9th Cir. 2014). 4 In the context of Social Security appeals, “attorneys’ fees are to be awarded to a 5 party winning a . . . remand unless the Commissioner shows that his position with respect 6 to the issue on which the district court based its remand was ‘substantially justified.’” Lewis 7 v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (quoting Flores v. Shalala, 49 F.3d 562, 8 568-69 (9th Cir. 1995)). Under the EAJA, there is “a presumption that fees will be awarded 9 to the prevailing party.” Flores, 49 F.3d at 567. “However, Congress did not intend for 10 fee shifting to be mandatory.” Id. “To show substantial justification for her position, the 11 [Commissioner] has the burden of establishing that her conduct had ‘a reasonable basis 12 both in law and fact.’” Id. at 569–70 (quoting Pierce v. Underwood, 487 U.S. 552, 565 13 (1988)). 14 When an agency’s decision “is unsupported by substantial evidence it is a strong 15 indication that the position of the United States is not substantially justified.” Sisemore v. 16 Comm’r of Soc. Sec. Admin., 2022 WL 306978, at *1 (D. Ariz. Feb. 2, 2022) (citation 17 omitted). But the Ninth Circuit has “never stated that every time a court reverses and 18 remands the ALJ’s decision for lack of substantial evidence the claimant should be awarded 19 attorney’s fees.” Id. (citation omitted). 20 Under Astrue v. Ratliff, 560 U.S. 586, 595–98 (2010), EAJA fees awarded by the 21 Court belong to Plaintiff and are subject to offset under the Treasury Offset Program (31 22 U.S.C. § 3716(c)(3)(B)). Fees are not to be awarded in excess of a $125 hourly rate, unless 23 the court finds cost of living warrants an increase of this amount. 28 U.S.C. § 24 2412(d)(2)(A). 25 The fee applicant bears the burden of documenting the hours spent litigating the 26 case and must submit evidence to support those hours. Welch v. Metro. Life Ins. Co., 480 27 F.3d 942, 948 (9th Cir. 2007). The fees and other expenses requested must be reasonable. 28 28 U.S.C. § 2412(d)(2)(A). Courts have a “great deal of discretion in determining the 1 reasonableness of” attorney fee awards. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th 2 Cir. 1992). 3 III. Discussion 4 To obtain a fee award Plaintiff must show (1) she is a “prevailing party;” and (2) 5 the government’s (“Defendant”) position is not “substantially justified.” Because Plaintiff 6 is a prevailing party and Defendant’s position was not substantially justified, the Court 7 finds Plaintiff is entitled to an award of attorneys’ fees under the EAJA. 8 A. Prevailing Party Status 9 First, the Court finds, and Defendant does not contest, that Plaintiff was the 10 prevailing party in this matter. (Doc. 32 at 2); see Shalala v. Schaefer, 509 U.S. 292, 296 11 (1993) (finding a plaintiff qualifies as a prevailing party because his suit secured a remand 12 of the SSA’s final administrative decision). 13 B. Substantial Justification 14 The Court reversed and remanded the case because it found that the ALJ erred by 15 not adequately explaining the reason she omitted Plaintiff’s mental limitations in her RFC 16 determination. (Doc. 27 at 13–16). At step two of the sequential evaluation process, the 17 ALJ concluded Plaintiff’s mental health impairments were not severe. (Id.) The ALJ 18 assigned Plaintiff mild limitations in three of the four broad functional categories: 19 understanding, remembering, and applying information; interacting with others; and 20 concentration, persistence, and pace. (Id.) The Court found the ALJ failed to account for 21 these mild limitations in her RFC determination or explain their omission. (Id.) The Court 22 thus reversed and remanded the decision. (Id.) 23 To avoid paying attorney’s fees under the EAJA, Defendant must show substantial 24 justification for its position. “When analyzing the government’s position for substantial 25 justification, the Court’s inquiry should be focused on the issue that was the basis for 26 remand and not the merits of Plaintiff’s claim in its entirety or the ultimate disability 27 determination.” Layton v. Comm’r of the Soc. Sec. Admin., 2017 WL 5158598, at *2 (D. 28 Ariz. Nov. 7, 2017). The Court will therefore focus on whether Defendant has shown 1 substantial justification for the ALJ’s failure to account for Plaintiff’s mild limitations in 2 the ALJ’s RFC determination or explain their omission. 3 Defendant argues it has shown substantial justification because the ALJ’s lack of 4 discussion of Plaintiff’s non-severe mental impairments in the ALJ’s RFC finding was 5 harmless error. (Doc. 32 at 4). Defendant asserts that a non-severe mental impairment 6 does not require express findings in the RFC. (Id.) Defendant thus says it was reasonable 7 for it to defend the ALJ’s RFC findings even if this Court concluded the ALJ’s decision 8 was otherwise incorrect. (Id. at 5). 9 Plaintiff argues it was critical for the ALJ to incorporate Plaintiff’s mental 10 limitations into the RFC because she had a documented mental impairment and post stroke 11 residual symptoms. (Doc. 29 at 5). Thus, Plaintiff argues the Court’s finding that the ALJ 12 failed to provide specific reasons for Plaintiff’s non-severe mental impairments was correct 13 and Defendant cannot show its position is substantially justified. (Id.) 14 The Court finds Defendant fails to show substantial justification for its position. 15 Although Defendant claims a non-severe mental impairment does not require express 16 findings in the RFC, the Court finds this insufficient to show substantial justification for 17 its position.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Kathleen Mary Quiala, No. CV-20-01593-PHX-DJH
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Kathleen Mary Quiala (“Plaintiff”) has filed a Motion for Attorney’s Fees 16 under the Equal Access to Justice Act (“EAJA”) (Doc. 29).1 The Motion seeks an award 17 of $12,203.30 in fees. (Id. at 2). Plaintiff’s counsel also requests $400.00 in costs expended 18 for the complaint filing. (Id. at 3). 19 I. Background 20 On February 10, 2022, the Court issued an Order reversing the Administrative Law 21 Judge’s (“ALJ”) decision in this case and remanding the case for further proceedings. 22 (Doc. 27). In that Order, the Court found that the ALJ erred by not adequately explaining 23 the reason she omitted Plaintiff’s mental limitations in her RFC determination. (Id. at 13). 24 Accordingly, the Court reversed and remanded to the ALJ for further proceedings. (Id.) 25 II. Legal Standard 26 In any action brought by or against the United States, except one sounding in tort, 27 the EAJA provides that “a court shall award to a prevailing party other than the United 28 1 The motion is briefed. (Docs. 32; 33). 1 States fees and other expenses . . . unless the court finds that the position of the United 2 States was substantially justified.” 28 U.S.C. § 2412(d)(1)(A); Tobeler v. Colvin, 749 F.3d 3 830, 832 (9th Cir. 2014). 4 In the context of Social Security appeals, “attorneys’ fees are to be awarded to a 5 party winning a . . . remand unless the Commissioner shows that his position with respect 6 to the issue on which the district court based its remand was ‘substantially justified.’” Lewis 7 v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (quoting Flores v. Shalala, 49 F.3d 562, 8 568-69 (9th Cir. 1995)). Under the EAJA, there is “a presumption that fees will be awarded 9 to the prevailing party.” Flores, 49 F.3d at 567. “However, Congress did not intend for 10 fee shifting to be mandatory.” Id. “To show substantial justification for her position, the 11 [Commissioner] has the burden of establishing that her conduct had ‘a reasonable basis 12 both in law and fact.’” Id. at 569–70 (quoting Pierce v. Underwood, 487 U.S. 552, 565 13 (1988)). 14 When an agency’s decision “is unsupported by substantial evidence it is a strong 15 indication that the position of the United States is not substantially justified.” Sisemore v. 16 Comm’r of Soc. Sec. Admin., 2022 WL 306978, at *1 (D. Ariz. Feb. 2, 2022) (citation 17 omitted). But the Ninth Circuit has “never stated that every time a court reverses and 18 remands the ALJ’s decision for lack of substantial evidence the claimant should be awarded 19 attorney’s fees.” Id. (citation omitted). 20 Under Astrue v. Ratliff, 560 U.S. 586, 595–98 (2010), EAJA fees awarded by the 21 Court belong to Plaintiff and are subject to offset under the Treasury Offset Program (31 22 U.S.C. § 3716(c)(3)(B)). Fees are not to be awarded in excess of a $125 hourly rate, unless 23 the court finds cost of living warrants an increase of this amount. 28 U.S.C. § 24 2412(d)(2)(A). 25 The fee applicant bears the burden of documenting the hours spent litigating the 26 case and must submit evidence to support those hours. Welch v. Metro. Life Ins. Co., 480 27 F.3d 942, 948 (9th Cir. 2007). The fees and other expenses requested must be reasonable. 28 28 U.S.C. § 2412(d)(2)(A). Courts have a “great deal of discretion in determining the 1 reasonableness of” attorney fee awards. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th 2 Cir. 1992). 3 III. Discussion 4 To obtain a fee award Plaintiff must show (1) she is a “prevailing party;” and (2) 5 the government’s (“Defendant”) position is not “substantially justified.” Because Plaintiff 6 is a prevailing party and Defendant’s position was not substantially justified, the Court 7 finds Plaintiff is entitled to an award of attorneys’ fees under the EAJA. 8 A. Prevailing Party Status 9 First, the Court finds, and Defendant does not contest, that Plaintiff was the 10 prevailing party in this matter. (Doc. 32 at 2); see Shalala v. Schaefer, 509 U.S. 292, 296 11 (1993) (finding a plaintiff qualifies as a prevailing party because his suit secured a remand 12 of the SSA’s final administrative decision). 13 B. Substantial Justification 14 The Court reversed and remanded the case because it found that the ALJ erred by 15 not adequately explaining the reason she omitted Plaintiff’s mental limitations in her RFC 16 determination. (Doc. 27 at 13–16). At step two of the sequential evaluation process, the 17 ALJ concluded Plaintiff’s mental health impairments were not severe. (Id.) The ALJ 18 assigned Plaintiff mild limitations in three of the four broad functional categories: 19 understanding, remembering, and applying information; interacting with others; and 20 concentration, persistence, and pace. (Id.) The Court found the ALJ failed to account for 21 these mild limitations in her RFC determination or explain their omission. (Id.) The Court 22 thus reversed and remanded the decision. (Id.) 23 To avoid paying attorney’s fees under the EAJA, Defendant must show substantial 24 justification for its position. “When analyzing the government’s position for substantial 25 justification, the Court’s inquiry should be focused on the issue that was the basis for 26 remand and not the merits of Plaintiff’s claim in its entirety or the ultimate disability 27 determination.” Layton v. Comm’r of the Soc. Sec. Admin., 2017 WL 5158598, at *2 (D. 28 Ariz. Nov. 7, 2017). The Court will therefore focus on whether Defendant has shown 1 substantial justification for the ALJ’s failure to account for Plaintiff’s mild limitations in 2 the ALJ’s RFC determination or explain their omission. 3 Defendant argues it has shown substantial justification because the ALJ’s lack of 4 discussion of Plaintiff’s non-severe mental impairments in the ALJ’s RFC finding was 5 harmless error. (Doc. 32 at 4). Defendant asserts that a non-severe mental impairment 6 does not require express findings in the RFC. (Id.) Defendant thus says it was reasonable 7 for it to defend the ALJ’s RFC findings even if this Court concluded the ALJ’s decision 8 was otherwise incorrect. (Id. at 5). 9 Plaintiff argues it was critical for the ALJ to incorporate Plaintiff’s mental 10 limitations into the RFC because she had a documented mental impairment and post stroke 11 residual symptoms. (Doc. 29 at 5). Thus, Plaintiff argues the Court’s finding that the ALJ 12 failed to provide specific reasons for Plaintiff’s non-severe mental impairments was correct 13 and Defendant cannot show its position is substantially justified. (Id.) 14 The Court finds Defendant fails to show substantial justification for its position. 15 Although Defendant claims a non-severe mental impairment does not require express 16 findings in the RFC, the Court finds this insufficient to show substantial justification for 17 its position. Defendant takes issue with the Court’s reliance on Hutton v. Astrue because 18 it is non-binding authority. 491 F. Appx. 850, 850–51 (9th Cir. 2012). Although true, the 19 Court also pointed to several district court cases that likewise found an ALJ must consider 20 the mild functional limitations which result from a non-severe mental impairment in their 21 RFC discussion. (See Doc. 27 at 15) (citing Frary v. Comm’r of Soc. Sec., 2021 WL 22 5401495, at *13 (E.D. Cal. Nov. 18, 2021) (citing Denney v. Saul, 2019 WL 4076717, at 23 *7–8 (E.D. Cal. Aug. 29, 2019)); Lindsay v. Berryhill, 2018 WL 3487167, at *6 (C.D. Cal. 24 July 18, 2018))). The Court then acknowledged other district courts that have distinguished 25 Hutton but noted that even in those cases the ALJ still considered some evidence related to 26 the plaintiff’s mental impairments beyond step two of the sequential process. (Id. at 16). 27 The ALJ plainly did not do so here, and the Court thus rejects Defendants argument 28 that its position was substantially justified. Indeed, the Ninth Circuit has found “it will be 1 only a decidedly unusual case in which there is substantial justification under the EAJA 2 even though the agency’s decision was revered as lacking in reasonable, substantial and 3 probative evidence in the record.” Thangaraja v. Gonzalez, 428 F.3d 870, 874 (9th Cir. 4 2005) (quoting Al-Harbi v. INS, 284 F.3d 1080, 1084 (9th Cir. 2002)) (internal quotation 5 marks omitted). Defendant has not carried its burden or shown that this is a “decidedly 6 unusual case.” Id. The Court therefore finds Defendant’s position was not substantially 7 justified. 8 C. Reasonableness of Fees Requested 9 When awarding a party attorneys’ fees under the EAJA, the court must determine 10 the reasonableness of the fees sought. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th 11 Cir.2001). This inquiry generally entails determining “the number of hours reasonably 12 expended on the litigation multiplied by a reasonable hourly rate.” Id. (quoting Hensley v. 13 Eckerhart, 461 U.S. 424, 433 (1983)) (quotation marks omitted). 14 Defendant does not contest that Plaintiff’s requested award of $12,203.30 is 15 unreasonable. (Doc. 32 at 6). Defendant simply argues any fees awarded must be made 16 payable to Plaintiff, not her attorney, under Astrue v. Ratliff, if Defendant finds that 17 Plaintiff has a government debt. (Id.) The Court agrees and will include such instructions 18 in its ordering language. 19 Plaintiff’s attorney spent 56.2 hours on this case: 2.3 hours in 2020, 51.2 hours in 20 2021, and 2.7 hours in 2022. (Doc. 29 at ¶ 7). The hourly rates are consistent with the 21 Ninth Circuit’s EAJA rates, and the Court finds Plaintiff’s fees reasonable. (Doc. 29-2); 22 see Love v. Reilly, 924 F.2d 1492, 1497 (9th Cir. 1991) (holding that “the prevailing party 23 is automatically entitled to attorney’s fees for any fee litigation once the district court has 24 made a determination that the government’s position lacks substantial justification”). 25 IV. Conclusion 26 The Court grants Plaintiff’s Motion for Attorney Fees under the EAJA. The EAJA 27 award must ultimately go to Plaintiff, not his attorney. Ratliff, 560 U.S. at 595–98. Thus, 28 the Court will order the check, payable to Plaintiff, be mailed to Plaintiff’s counsel’s office. 1|| Jd. This award is also subject to the Treasury Department’s Offset Program. Ratliff, 560 2|| U.S. at 595-98 (2010). 3 Accordingly, 4 IT IS ORDERED that Plaintiff's Motion for Attorney Fees for Attorney Fees under 5 || the Equal Access to Justice Act (Doc. 29) is granted. Plaintiff is awarded $12,203.30 in 6|| attorney fees and $400.00 in costs. Any check for EAJA fees shall be made out to Kathleen 7\| Mary Quiala, and mailed to Plaintiffs counsel: Karl E. Osterhout, Esquire; 521 Cedar Way, 8 || Suite 200; Oakmont, Pennsylvania 15139. 9 IT IS FURTHER ORDERED that if after receiving this Order, the Commissioner: || (1) determines upon effectuation of this Order that Plaintiff does not owe a debt that is 11 || subject to offset under the Treasury Offset Program, and (2) agrees to waive the 12 || requirements of the Anti-Assignment Act, 31 U.S.C. § 3727(b), the fees will be made 13} payable to Plaintiff's attorney. However, if there is a debt owed under the Treasury Offset Program, the remaining EAJA fees after offset will be paid by check made out to Plaintiff 15 || but delivered to Plaintiffs attorney. 16 Dated this 31st day of March, 2023. 17 18 ( . fo rn —— SL 13 norable'Diang4. Hurmetewa 0 United States District Fudge 21 22 23 24 25 26 27 28
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