(SS) McElligott v. Commissioner of Social Security

District Court, E.D. California·Decided October 13, 2020·No. 2:18-cv-02331·Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KEVIN JOHN McELLIGOT, No. 2:18-cv-2331 DB 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security,1 15 16 Defendant. 17 18 This matter is before the court on plaintiff’s motion for attorney’s fees pursuant to the 19 Equal Access to Justice Act (“EAJA”).2 (ECF No. 26.) Plaintiff brought this action seeking 20 judicial review of a final administrative decision denying plaintiff’s application for Disability 21 Insurance Benefits under Title II of the Social Security Act. On March 2, 2020, following the 22 filing of a motion for summary judgment by plaintiff and a cross-motion for summary judgment 23

24 1 Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019. See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019). 25 Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. § 26 405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant 28 to 28 U.S.C. § 636(c). (See ECF Nos. 4 & 6.) 1 by defendant, the court granted plaintiff’s motion, reversed the decision of the Commissioner, and 2 remanded this action for further proceedings. (ECF No. 24.) On June 1, 2020, plaintiff filed a 3 motion for attorney’s fees. (ECF No. 26.) Defendant filed an opposition on June 18, 2020. (ECF 4 No. 27.) 5 STANDARDS 6 The EAJA provides that “a court shall award to a prevailing party . . . fees and other 7 expenses . . . incurred by that party in any civil action . . . brought by or against the United States . 8 . . unless the court finds that the position of the United States was substantially justified or that 9 special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); see also Gisbrecht v. 10 Barnhart, 535 U.S. 789, 796 (2002). “It is the government’s burden to show that its position was 11 substantially justified or that special circumstances exist to make an award unjust.” Gutierrez v. 12 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 13 A “party” under the EAJA is defined as including “an individual whose net worth did not 14 exceed $2,000,000 at the time the civil action was filed[.]” 28 U.S.C. § 2412(d)(2)(B)(i). The 15 term “fees and other expenses” includes “reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A). 16 “The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the 17 prevailing party to the extent that the party ‘unduly and unreasonably protracted’ the final 18 resolution of the case.” Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 19 2412(d)(1)(C) & 2412(d)(2)(D)). 20 A party who obtains a remand in a Social Security case is a prevailing party for purposes 21 of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (“No holding of this Court has 22 ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence 23 four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.”). “An 24 applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the 25 denial of her benefits is reversed and remanded regardless of whether disability benefits 26 ultimately are awarded.” Gutierrez, 274 F.3d at 1257. 27 //// 28 //// 1 ANALYSIS 2 Here, the court finds that plaintiff is the prevailing party, that plaintiff did not unduly 3 delay this litigation, and that there is no reason to believe plaintiff’s net worth exceeded two 4 million dollars when this action was filed. Moreover, as explained below, the court finds that the 5 position of the United States was not substantially justified. 6 A. Substantial Justification 7 “Substantial justification means ‘justified in substance or in the main—that is, justified to 8 a degree that could satisfy a reasonable person.’” Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 9 2014) (quoting Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013)). “Put differently, the 10 government’s position must have a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 11 870 (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). “‘[T]he position of the United 12 States includes both the government’s litigation position and the underlying agency action.’” 13 Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013) (quoting Meier, 727 F.3d at 870); see also 14 Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“the relevant question is whether the 15 government’s decision to defend on appeal the procedural errors committed by the ALJ was 16 substantially justified”). “In determining whether a party is eligible for fees under EAJA, the 17 district court must determine whether the government’s position regarding the specific issue on 18 which the district court based its remand was ‘substantially justified’—not whether the ALJ 19 would ultimately deny disability benefits.” Gardner v. Berryhill, 856 F.3d 652, 656 (9th Cir. 20 2017). 21 Here, defendant argues that the government’s position was substantially justified. (Def.’s 22 Opp.’n (ECF No. 27) at 3-5.) Defendant’s arguments, however, simply rehashes the 23 unmeritorious arguments asserted in defendant’s cross-motion for summary judgment. Moreover, 24 the ALJ committed multiple legal errors, as established by settled circuit case law, involving the 25 step two analysis, treatment of the medical opinion evidence, and plaintiff’s subjective testimony. 26 Under these circumstances, the court cannot find that the government’s position was substantially 27 justified. See Tacas v. Astrue, No. CIV 09-2144 EFB, 2011 WL 5984007, at *2 (E.D. Cal. Nov. 28 29, 2011) (citing Gutierrez, 274 F.3d at 1259-60) (“when the government violates its own 1 regulations, fails to acknowledge settled circuit case law, or fails to adequately develop the 2 record, its position is not substantially justified.”). 3 B. Plaintiff’s Fee Request 4 The EAJA expressly provides for an award of “reasonable” attorney fees. 28 U.S.C. § 5 2412(d)(2)A).

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25 3 In accordance with the decision in Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 26 2005), and Ninth Circuit Rule 39-1.6, the Ninth Circuit Court of Appeals maintains a list of the statutory maximum hourly rates authorized by the EAJA, as adjusted annually. The rates may be 27 found on the Court’s website. See http://www.ca9.uscourts.gov. Here, plaintiff’s requested attorney rates are equal to, or lower than, the statutory maximum rates established by the Ninth 28 Circuit. (Pl.’s EAJA Mot. (ECF No. 26) at 4.) 1 may not apply de facto caps limiting the number of hours attorneys can reasonably expend on 2 ‘routine’ social security cases.”). See generally Moreno v. City of Sacramento, 534 F.3d 1106, 3 1112 (9th Cir. 2008) (“By and large, the court should defer to the winning lawyer’s professional 4 judgment as to how much time he was required to spend on the case; after all, he won, and might 5 not have, had he been more of a slacker.”). 6 Accordingly, after carefully reviewing the record and the pending motion, the court 7 declines to conduct a line-by-line analysis of counsel’s billing entries. See, e.g., Commissioner, 8 I.N.S. v. Jean, 496 U.S. 154, 161-62 (1990) (“the EAJA—like other fee-shifting statutes—favors 9 treating a case as an inclusive whole, rather than as atomized line-items”); Stewart v. Sullivan, 10 810 F. Supp. 1102, 1107 (D. Haw. 1993); Duran v. Colvin, No. 2:11-cv-2978 DAD, 2013 WL 11 5673415, at *2 (E.D. Cal. Oct. 17, 2013). 12 Defendant notes that in the March 3, 2020 order the court “reordered and reorganized 13 plaintiff’s claims for purposes of clarity and efficiency,” and found it unnecessary to reach all of 14 plaintiff’s claims of error. (Def.’s Opp.’n (ECF No. 27) at 6.) Accordingly, defendant argues that 15 “much of” the hours plaintiff spent were on work the court “did not even consider” and that 16 plaintiff’s “brief could easily have been half as long and achieved the same result.” (Id. at 7.) 17 Defendant, however, misunderstands the court’s order. 18 The court reordered and reorganized plaintiff’s claims for purposes of clarity and 19 efficiency in drafting the March 3, 2020 order. That decision was informed largely by the nature 20 of the ALJ’s multiple errors and not because plaintiff’s briefing was unclear, unnecessary, 21 redundant, etc. Likewise, the court certainly did consider all of plaintiff’s briefing in drafting the 22 March 3, 2020 order. Again, the decision to not reach all of plaintiff’s claims of error was a 23 reflection of the ALJ’s multiple systemic errors that required remand for further proceedings and 24 not a reflection of the merits of the remaining unaddressed claims of error. It was also a 25 reflection of the fact that “the Eastern District has one of the highest weighted case loads per 26 judge in the nation.” Irving v. Lennar Corp., No. CIV S-12-0290 KJM EFB, 2013 WL 1308712, 27 at *6 (E.D. Cal. Apr. 1, 2013). 28 //// 1 C. Fee Award 2 Plaintiff’s counsel argues that “the check for EAJA fees should be made payable to 3 | Plaintiff’s attorney” pursuant to the applicable fee agreement. (PI.’s EAJA Mot. (ECF No. 26) at 4 | 6.) However, an attorney fee award under the EAJA is payable to the litigant and is therefore 5 | subject to a government offset to satisfy any pre-existing debt owed to the United States by the 6 | claimant. Astrue v. Ratliff, 560 U.S. 586, 592-93 (2010). 7 Subsequent to the decision in Ratliff, some courts have ordered payment of the award of 8 || EAJA fees directly to plaintiff’s counsel pursuant to plaintiff’s assignment of EAJA fees, 9 || provided that the plaintiff has no debt that requires offset. See Blackwell v. Astrue, No. CIV 08- 10 | 1454 EFB, 2011 WL 1077765, at *5 (E.D. Cal. Mar. 21, 2011); Dorrell v. Astrue, No. CIV 09- 11 0112 EFB, 2011 WL 976484, at *2-3 (E.D. Cal. Mar. 17, 2011); Calderon v. Astrue, No. 1:08-cv- 12 | 01015 GSA, 2010 WL 4295583, at *8 (E.D. Cal. Oct. 22, 2010); Castaneda v. Astrue, No. EDCV 13 || 09-1850-OP, 2010 WL 2850778, at *3 (C.D. Cal. July 20, 2010). The Court will incorporate 14 || such a provision in this order. 15 CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Plamtiff’s motion for attorney fees under the Equal Access to Justice Act (ECF No. 26) 18 | is granted; 19 2. Plaintiff is awarded $9,333.41 in attorney fees and cost under 28 U.S.C. § 2412(d); and 20 3. Defendant shall determine whether plaintiffs EAJA attorney’s fees are subject to any 21 | offset permitted under United States Department of the Treasury’s Offset Program and, if the 22 || fees are not subject to an offset, shall honor plaintiff’s assignment of EAJA fees and shall cause 23 || the payment of fees to be made directly to plaintiff’s counsel pursuant to the assignment executed 24 | by plaintiff. 25 || Dated: October 12, 2020 26 27 28 DBioners\orders-soc sec\mcelligot2331.eaja.ord OR re Ok a tk RATE JUDGE

(SS) McElligott v. Commissioner of Social Security, (E.D. Cal. 2020).

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