Reed 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 Charles Evan Reed, Jr., No. CV-17-04752-PHX-SMB

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Motion for Attorney Fees Under the Equal 16 Access to Justice Act. (Doc. 30.) Plaintiff attached a memorandum in support of the 17 motion. (Doc. 31.) The Social Security Administration (“SSA”) has filed a response. (Doc. 18 33.) Plaintiff has filed a reply. (Doc. 40.) The Court grants the motion and awards 19 $27,709.80 for the reasons discussed below. 20 I. BACKGROUND 21 Plaintiff commenced this social security action on December 22, 2017. (Doc. 1.) On 22 August 30, 2019, this Court affirmed the Commissioner of Social Security’s decision that 23 Plaintiff was not disabled pursuant to the Social Security Act, 42 U.S.C. §§ 416, 423 (Docs. 24 23, 24.) Plaintiff appealed, and on November 19, 2020, the Ninth Circuit reversed and 25 remanded this case to the SSA for further proceedings. (Memorandum, No. 19-17179, 26 DktEntry 36-1.) 27 Thereafter, Plaintiff filed the instant motion for attorney’s fees and supporting 28 1 memorandum.1 (Doc. 30, 31.) The Commissioner opposes the granting of fees, contending 2 that its position in defending the ALJ’s assessment was “substantially justified” and 3 alternatively, that the fees are nevertheless unreasonable. (Doc. 33 at 5, 10.) Plaintiff filed 4 a reply. (Doc. 40.) 5 II. LEGAL STANDARD 6 The Equal Access to Justice Act (“EAJA”) provides for an award of fees, other 7 expenses, and costs to a prevailing plaintiff “in any civil action (other than cases sounding 8 in tort), including proceedings for judicial review of agency action” unless “the position of 9 the United States was substantially justified or that special circumstances make an award 10 unjust.” 28 U.S.C. § 2412(d)(1)(A). The United States’ position “includes both the 11 government’s litigation position and the underlying agency action giving rise to the civil 12 action.” Meir v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). In the social security context, 13 the ALJ’s decision is the relevant underlying agency action. Id. 14 To be “substantially justified,” the government’s position does not need to be 15 correct, but rather needs to be “‘justified in substance or in the main’—that is, justified to 16 a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 17 (1988). The government bears the burden of showing “that its position was substantially 18 justified or that special circumstances exist.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258 19 (9th Cir. 2001.) An agency’s decision that was “unsupported by substantial evidence” is “a 20 strong indication” that the United States’ position “was not substantially justified.” 21 Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005). ‘“Indeed, it will be only a 22 “decidedly unusual case in which there is substantial justification under the EAJA even 23 though the agency’s decision was reversed as lacking in reasonable, substantial and 24 probative evidence in the record.”’ Id. (citing Al-Harbi v. I.N.S., 284 F.3d 1080, 1085 (9th 25 Cir. 2002)). However, this is not dispositive, because the government’s loss “does not raise 26 1 Plaintiff’s motion sought payment as authorized by the EAJA in the amount of 27 $26,255.34. (Doc. 30 at 2.) Plaintiff’s reply in support of the motion amended that amount 28 to $27,709.80 based on the additional time spent to complete the pending briefing. (Doc. 40 at 16.) 1 a presumption that its position was not substantially justified.” Ibrahim v. U.S. Dep’t of 2 Homeland Sec., 912 F.3d 1147, 1168 (9th Cir. 2019). The Court should only consider the 3 “procedural issues” that caused the remand and need not consider “the ultimate issue of 4 disability” or the government’s position on “any other questions.” Flores v. Shalala, 49 5 F.3d 562, 566 (9th Cir. 1995); see also Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 6 1996) (citing Flores, 49 F.3d at 570) (“The nature and scope of the ALJ’s legal errors are 7 material in determining whether the Commissioner's decision to defend them was 8 substantially justified.”). 9 III. DISCUSSION 10 Plaintiff asserts he is the prevailing party for EAJA purposes because he obtained 11 a remand for further proceedings from the Ninth Circuit. (Doc. 30 at 1); see Shalala v. 12 Schaefer, 509 U.S. 292, 300-01 (1993). The Commissioner does not dispute Plaintiff’s 13 prevailing party status. (Doc. 33 at 4.) Therefore, the Court will now determine whether 14 the SSA has succeeded in showing the government’s position was substantially justified. 15 A. Substantial Justification 16 When determining whether the government’s position was substantially justified, 17 “unreasonable agency action at any level entitles the litigant to EAJA fees.” Ibrahim, 912 18 F.3d at 1167; see also Meier, 727 F.3d at 872 (“Because the government’s underlying 19 position was not substantially justified, we need not address whether the government’s 20 litigation position was justified.”). Hence, the Court will first determine whether the ALJ 21 decision was substantially justified. 22 The Ninth Circuit upheld the ALJ’s rationale on all but one issue. (Doc. 31 at 6.) 23 The appellate court remanded because the ALJ erred in rejecting the Plaintiff’s testimony 24 regarding the severity of his symptoms. (Id.) The Ninth Circuit held that the ALJ “could 25 only reject Reed’s testimony … by offering specific, clear and convincing reasons for 26 doing so.” (Id. at 6-7); see Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The 27 appellate court noted that the ALJ ‘“merely stated that Reed’s “statements concerning the 28 intensity, persistence, and limiting effects of these symptoms are not supported by the 1 evidence to the extent they are inconsistent with the above residual functional capacity 2 assessment,” and then turned to a discussion of the medical evidence.”’ (Id. at 7.) Thus, the 3 Circuit court found that the ALJ’s findings were “insufficient to meet our requirements of 4 specificity.” (Id.) 5 The SSA contends the Ninth Circuit remanded because “the panel took a different 6 view” regarding how the ALJ should have articulated its findings about Plaintiff’s 7 subjective symptoms, and “the ALJ cited the standard boilerplate language.” (Doc. 33 at 8 7.)2 The Commissioner further adds that the panel did not state whether the ALJ’s findings 9 “would have been proper reasons” because the findings were “articulated in a different 10 portion of the ALJ decision.” (Id.) The Plaintiff argues that this is incorrect because the 11 ALJ did not “specify what symptom testimony is rejected, and what evidence is found to 12 undermine that symptom testimony.” (Doc. 40 at 4.) Plaintiff is correct. The ALJ failed to 13 offer “specific, clear and convincing reasons” for rejecting Plaintiff’s testimony. (Doc. 31 14 at 6, 7.) 15 An ALJ’s failure to provide “clear and convincing reasons” for discrediting a 16 plaintiff’s testimony is a fundamental procedural error that lacks substantial justification. 17 Shafer v. Astrue, 518 F.3d 1067, 1071-72 (9th Cir. 2008). “General findings are 18 insufficient” to discredit Plaintiff’s subjective symptom testimony. Lester v. Chater, 81 19 F.3d 821, 834 (9th Cir. 1995). Here, the ALJ committed a fundamental procedural error by 20 rejecting the Plaintiff’s symptom testimony without clear and convincing reasons. 21 Therefore, the underlying government action was not substantially justified. 22 At this point in the analysis, since the Court has found that the government’s 23 underlying action was not substantially justified, the Court does not need to address 24 whether the government’s litigation position was substantially justified. See Meier, 727 25 F.3d at 872. However, for good measure, the Court will still address this inquiry. While the 26 2 The SSA mentions that the “ALJ’s specific findings discussed by this Court” were not 27 analyzed by the Ninth Circuit. (Doc. 33 at 7.) “It is settled law that a district court’s decision 28 to affirm, reverse or modify a determination of the Social Security Administration is reviewed de novo on appeal.” Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). 1 government’s defense of an ALJ’s procedural error “does not automatically require a 2 finding that the government’s position was not substantially justified, the defense of basic 3 and fundamental errors . . . is difficult to justify.” Corbin v. Apfel, 149 F.3d 1051, 1053 4 (9th Cir. 1998). 5 The SSA argues that the its actions met a ‘“lower substantially justified”’ standard. 6 (Doc. 33 at 5.) More specifically, the SSA cites to Tommasetti to assert that the defense of 7 the ALJ’s decision was substantially justified because “an ALJ’s ‘credibility’ findings are 8 sufficient when they show that the ALJ did not arbitrarily discredit a claimant’s testimony.” 9 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). However, the opinion goes 10 further to state that, “the ALJ can reject the claimant’s testimony about the severity of [his] 11 symptoms only by offering specific, clear and convincing reasons for doing so.” Id. As 12 mentioned above, the ALJ failed to offer such reasons here. Therefore, the SSA has clearly 13 not presented evidence of a lower substantially justified standard.3 14 The SSA contends that the fact this Court affirmed the agency decision to deny 15 Plaintiff’s application for disability benefits “implies [the SSA’s] position was reasonably 16 based in law and fact.” (Doc. 33 at 6.) The Plaintiff argues that “while a prior favorable 17 3 The SSA additionally cites to Williams v. Bowen, 934 F.2d 221, 223 (9th Cir. 1991), 18 amended and superseded by Williams v. Bowen, 966 F.2d 1259 (9th Cir. 1991), to show 19 that the substantial justification test is satisfied if “some evidence supported the Secretary’s position.” (Doc. 33 at 8.) While Bowen held that the district court did not abuse its 20 discretion in denying EAJA fees, the Ninth Circuit case law has since adopted a new 21 interpretation of substantial justification. See Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995). 22 23 The SSA also cites to Hardisty v. Astrue, 592 F.3d 1072, 1075 (9th Cir. 2010), to argue that the ALJ’s subjective symptom analysis has a “reasonable basis in fact” because the 24 record “provides at least some support for the ALJ’s findings.” (Doc. 33 at 8.) However, Hardisty does not apply to these facts. In Hardisty, the ALJ made an erroneous credibility 25 finding due to facts and testimony that were later discredited. Hardisty, 592 F.3d at 1075. 26 There, the Ninth Circuit found the government’s position substantially justified because the evidence that the government relied upon to make its credibility determination had 27 some basis in the record. Id. Here, the cause for remand is solely because the ALJ failed to 28 set forth “specific, clear and convincing reasons” to reject the Plaintiff’s testimony. (Doc. 31 at 6.) 1 ruling may be a factor to be considered,” the ruling is insufficient to demonstrate substantial 2 justification. (Doc. 40 at 3.) “Obviously, the fact one other court agreed or disagreed with 3 the Government does not establish whether its position was substantially justified.” Pierce, 4 487 U.S. 552 at 569. However, “objective indicia,” such as prior court rulings, can be 5 relevant to establishing “substantial justification.” Id. at 553. The prior decision is not alone 6 sufficient to show the government’s litigation position was substantially justified. 7 Thus, the Court finds Plaintiff eligible for an award of fees under the EAJA. 8 B. Reasonableness of the Fee Request 9 “[O]nce a private litigant has met the multiple conditions for eligibility for EAJA 10 fees, the district court’s task of determining what fee is reasonable is essentially the same 11 as that described in Hensley.” Comm’r, I.N.S. v. Jean, 496 U.S. 154, 161 (1990). “The most 12 useful starting point for determining the amount of a reasonable fee is the number of hours 13 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. 14 Eckerhart, 461 U.S. 424, 433 (1983).4 Hours that were not “reasonably expended” should 15 be excluded from the initial fee calculation. Id. This method of fee calculation is now 16 referred to as the “lodestar” method. Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 17 1135 (9th Cir. 2012). 18 The SSA does not dispute the reasonableness of the hourly rate charged because 19 Plaintiff’s counsel charged the statutory maximum rates.5 However, the SSA disputes 20 whether the amount of time Plaintiff’s counsel billed was reasonable. 21 Plaintiff requests $27,709.80 in attorney’s fees as reimbursement for 135.30 billable 22 hours. (Doc. 31; Doc. 40.) The SSA argues that the Court should reduce Plaintiff’s original 23 fee request by $6,279.10 to account for unreasonable billing. (Doc. 33 at 19.) The SSA 24 challenges the documented hours on the following grounds: (1) the Plaintiff has “failed to 25

26 4 In Whitehead v. Colvin, 2016 WL 1464469, at *2 n.1 (W.D. Wash. Apr. 14, 2016), the court noted that the Prison Litigation Reform Act had in part superseded Hensley. This 27 statutory change is not relevant here, because this case does not involve prisoner litigation. 28 5 “Statutory Maximum Rates Under the Equal Access to Justice Act,” available at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039. 1 meet his burden that his fee request is reasonable,” (2) the amount of fees “requested for 2 drafting of the complaint” is unreasonable, (3) the “time spent drafting and reviewing the 3 district court opening brief was unreasonable,” (4) the “time spent drafting and reviewing 4 the Ninth Circuit opening brief was unreasonable, and (5) the fees sought for “reviewing 5 filed documents that counsel had already reviewed and edited are unreasonable.” (Id. at 2.) 6 The SSA does not cite to any authority to offer arguments concerning its first point that 7 Plaintiff’s counsel’s fees were unreasonable. (Id. at 10.) Therefore, the Court will focus on 8 the SSA’s remaining four arguments. 9 The SSA contends that there is no justification for “spending 9.5 hours drafting a 10 16-page complaint.” (Id. at 9.) To support this position, the SSA argues that Plaintiff’s 11 counsel could have drafted a simpler complaint, akin to the pro se complaints this Court 12 and other courts find sufficient. (Id. at 10.) The Plaintiff argues that a “persuasive complaint 13 might avoid further litigation by convincing the agency that its position is unjustified and 14 the case merits remand for administrative action to correct the agency’s errors.” (Doc. 40 15 at 11.) The Plaintiff cites to 42 U.S.C. § 405(g) which contemplates such a scenario and 16 multiple cases where this occurred. (Id.) Expending time early on at the complaint-stage to 17 avoid unnecessary litigation is wise in any litigation, and the Court finds the time requested 18 is not unreasonable. 19 The Commissioner asserts that the time Plaintiff’s counsel spent drafting the district 20 court and Ninth Circuit briefs was unreasonable because of the use of boilerplate language 21 and the “duplicate work.” (Doc. 33 at 14, 17.) The Plaintiff contends that the use of 22 boilerplate language saved time. (Doc. 40 at 12.) Additionally, while the use of multiple 23 attorneys may lead to some duplication of services, the Plaintiff asserts that “it is the result 24 that counts,” and the case here “could have been more efficiently lost, as well.” (Doc. 40 25 at 12); see also Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008) (“One 26 certainly expects some degree of duplication as an inherent part of the process.”). The Court 27 agrees with the Plaintiff that technical efficiency is not the primary aim of representation 28 and finds that the hours expended to draft the district court and Ninth Circuit briefs was 1 reasonable. 2 The SSA additionally asserts that Plaintiff’s counsel should not request fees for time 3 spent reviewing filed documents. (Doc. 33 at 18.) Plaintiff contends that “at times errors 4 have been caught in filed documents that could be corrected before this Court’s review.” 5 (Doc. 40 at 15.) Because this Court allows for the correction of errors in filed documents, 6 such review for potential revisions is acceptable. 7 Finally, the Commissioner argues that any fees requested by Plaintiff in drafting a 8 reply should not be permitted. (Doc. 33 at 18.) The Plaintiff requests compensation for 7.0 9 additional hours. (Doc. 40 at 16.) The award of “fees-on-fees,” or fees accrued in 10 connection with a motion for attorney’s fees, is permitted. Thompson v. Gomez, 45 F.3d 11 1365, 1367 (9th Cir. 1995). Therefore, the total EAJA request of $27,709.80 will be 12 awarded. 13 Pursuant to Plaintiff’s fee agreement (Doc. 31-1), the Court will award EAJA 14 attorney’s fees payable to Plaintiff’s counsel so long as Plaintiff does not owe debt subject 15 to the Treasury Offset Program. See Astrue v. Ratliff, 560 U.S. 586, 597 (2010). 16 IV. CONCLUSION 17 For the above stated reasons, 18 IT IS ORDERED that Plaintiff’s Motion for Award of Attorney Fees as Authorized 19 by the Equal Access to Justice Act, (Doc. 30), is granted. 20 IT IS FURTHER ORDERED that Plaintiff is awarded $27,709.80 in attorney’s 21 fees. 22 IT IS FURTHER ORDERED that if there is a debt owed under the Treasury Offset 23 Program, the remaining award after offset will be paid in the name of the Plaintiff, but the 24 check will be sent to Plaintiff’s counsel. However, if the SSA determines that Plaintiff does 25 /// 26 /// 27 /// 28 /// 1 || not owe a federal debt subject to offset and agrees to waive the requirements of the Anti- 2|| Assignment Act, 31 U.S.C. § 3727, payment shall be made in the name of Plaintiffs 3 || counsel. 4 Dated this 13th day of July, 2021. 5 6 = . RP 7 SO 8 Gnvted States District ude. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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