(SS) Ramirez v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 CHRISTY RAMIREZ, No. 1:20-cv-00515-GSA 5 Plaintiff, 6 v. ORDER GRANTING PLAINTIFF’S 7 MOTION FOR EAJA FEES KILOLO KIJAKAZI, Commissioner of 8 Social Security, (Doc. 24)

9 Defendant. 10

11 I. Introduction 12 On April 10, 2020 Plaintiff Christy Ramirez (“Plaintiff”) sought judicial review of a final 13 decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying her 14 applications for disability insurance benefits and supplemental security income pursuant to Titles 15 II and XVI, respectively, of the Social Security Act. The Court found that substantial evidence and 16 applicable law did not support the ALJ’s decision. On June 28, 2021 the Court issued an opinion 17 directing entry of judgment in favor of Plaintiff and remanding the matter to the agency for further 18 proceedings. Doc. 22. Judgment was entered the same day. Doc. 23. 19 Plaintiff now moves for an award of attorneys’ fees pursuant to the Equal Access to Justice 20 Act (EAJA), 28 U.S.C. § 2412(d). Doc. 24. In support of the request for $10,668.77 in fees, 21 Plaintiff’s counsel filed a declaration containing billing and time records. Doc. 24-1. The 22 Commissioner opposes the motion arguing reductions are warranted for time spent on 23 unmeritorious arguments and clerical tasks. Doc. 25. 24

28 II. Discussion 2 A. Substantial Justification

3 1. Legal Standard

4 A party seeking an award of fees and other expenses shall, within thirty days of final 5 judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award 6 under this subsection, and the amount sought, including an itemized statement from 7 any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were

8 computed. The party shall also allege that the position of the United States was not substantially justified. Whether or not the position of the United States was 9 substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil 10 action is based) which is made in the civil action for which fees and other expenses 11 are sought.

12 28 U.S.C. § 2412(d)(1)(B). 13 A plaintiff appealing a denial of Social Security benefits need not be awarded benefits to be 14 considered a prevailing party. Shalala v. Schaefer, 509 U.S. 292, 300 (1993). A plaintiff who 15 obtains a remand order pursuant to sentence four of 42 U.S.C. § 405(g) is also considered a 16 prevailing party under the EAJA. Id. A prevailing party is entitled to a fee award when the position 17 of the United States was not substantially justified. See 28 U.S.C. § 2412(d)(1)(B). While the 18 19 prevailing party must only allege that the position of the United States was not substantially 20 justified, the United States must carry the burden of establishing substantial justification. See 28 21 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 414 (2004). 22 “To establish substantial justification, the government need not establish that it was correct 23 or ‘justified to a high degree’ . . . only that its position is one that ‘a reasonable person could think 24 it correct, that is, has a reasonable basis in law and fact.’” Ibrahim v. DHS, 912 F.3d 1147, 1167 25 26 (9th Cir. 2019) (en banc) (quoting Pierce v. Underwood, 487 U.S. 552 (1988)). The substantial 27 justification standard is satisfied if there is a “genuine dispute” of fact or law, even if the court 28 ultimately rules against the government. See Pierce, 487 U.S. at 565. The determination of substantial justification is within the discretion of the district court. Pierce v. Underwood, 487 U.S. 2 552 (1988); McDonald v. Sec'y of Health & Hum. Servs., 884 F.2d 1468, 1473 (1st Cir. 1989). 3 Pursuant to 28 U.S.C. § 2412(d)(2)(D) ‘“position of the United States’ means, in addition 4 5 to the position taken by the United States in the civil action, the action or failure to act by the agency

6 upon which the civil action is based . . .’” Thus, the substantial justification standard applies not

7 only to the underlying agency action in denying benefits, but also to the legal and factual positions

8 advanced by the government’s attorneys during the litigation.

9 2. Analysis 10 The Court found the ALJ’s decision unsupported by substantial evidence insofar as the RFC 11 reflected that Plaintiff could handle and finger frequently notwithstanding the fact that all clinical 12 13 evidence of record established that Plaintiff had zero grip strength in her dominant hand following 14 her stroke. That clinical evidence amply supported Plaintiff’s testimony as to her limitations using 15 her dominant hand. Op. at 12-16, Doc. 22. The error was harmful given the VE’s testimony that 16 a reduction even to occasionally fingering and handling with either hand would eliminate the 17 available sedentary job base. Id. In opposing the instant fee motion, Defendant does not argue that 18 her position on this issue was substantially justified. 19 The Court also briefly addressed Plaintiff’s alternative argument regarding her treating 20 21 physician’s opinion: 22 Plaintiff’s third argument concerns a one-page certification form for in-home supportive care services (IHSS) on which Dr. Rad recommended IHSS because 23 Plaintiff was unable to independently perform “one or more” ADLs due conditions and limitations that would persist for 12 months. AR 677. The document did 24 specify the conditions or limitations in question or the clinical findings in support. 25 Existing case law does suggest that an ALJ should not reject a treating physician’s opinion solely because it was offered in a different context than social security 26 proceedings (such as worker’s compensation).1 Nevertheless, Plaintiff offers little to no explanation as to what changes to her RFC, if any, would have logically 27 followed had the ALJ credited the IHSS certification form as true. In any event, 28 1 See, e.g., Booth v. Barnhart, 181 F. Supp. 2d 1099, 1103 (C.D. Cal. 2002). because the Court finds the ALJ’s decision unsupported for independent reasons, 2 remand is appropriate without regard to Plaintiff’s third argument.

3 Op. at 8.

4 In opposing the instant fee motion, Defendant does not overtly argue that her position in

5 opposing Plaintiff’s third argument was substantially justified, but Defendant does argue that the

6 11 hours of time Plaintiff’s counsel spent on this “unfruitful argument” should be deduction from 7 the fee amount, among other deductions. 8 9 B. Fee Amount 10 1. Legal Standard 11 Having determined a fee award is appropriate, the Court must consider the reasonableness 12 of the fee request. See 28 U.S.C. § 2412(d)(2)(A). The Court has an “independent obligation for 13 judicial review of the reasonableness of the amount of fees sought under the EAJA regardless of 14 whether the request is opposed.” Douzat v. Saul, 2020 WL 3408706, at *1 (D. Nev. June 11, 2020), 15 citing Lucas v. White, 63 F. Supp. 2d 1046, 1060 (N.D. Cal. 1999). “This obligation is consistent 16 17 with Ninth Circuit precedent outside the EAJA context that similarly highlights the Court's duty to 18 review the reasonableness of a fee request.” Id, citing Gates v. Deukmejian, 987 F.2d 1392, 1401 19 (9th Cir. 1992) (in addressing request for fees under 42 U.S.C. § 1988, indicating that “the district 20 court is required to independently review [a] fee request even absent . . . objections”). 21 Under fee shifting statutes, the movant generally bears the burden of documenting hours 22 and establishing reasonableness of the fee request. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 23 434 (1983). In addition to the overall fee request, each individual billing entry is also subject to 24 25 scrutiny. Spegon v. Catholic Bishop, 175 F.3d 544, 552 (7th Cir. 1999). Counsel is entitled to 26 compensation for all work a reasonable and prudent lawyer would undertake to advance her client’s 27 interests. Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 (9th Cir. 1982). 28 EAJA hourly rates are capped at $125.00 per hour plus annual cost of living adjustments 2 pursuant to the formula set forth in Thangaraja v. Gonzales, 428 F.3d 870, 876–77 (9th Cir. 2005), 3 and published electronically by the Ninth Circuit Court of Appeals. See 9th Cir. R. 39-1.6. The 4 5

rate set for 2020 was $207.78 per hour.2

6 2. Analysis

7 Here, counsel seeks compensation for 50.8 hours of work. Doc. 24-1. Defendant argues

8 that the following reductions are warranted: 1) a 10% global reduction given the routine nature of

9 the issues and Plaintiff’s counsel’s experience; 2) an 11-hour reduction due to time spent on 10 unfruitful issues; and 3) a 4-hour reduction for time spent on clerical tasks. 11 a. Global Reduction of 10% 12 13 “Courts should generally defer to the ‘winning lawyer’s professional judgment as to how 14 much time he was required to spend on the case.’” See Costa v. Comm’r of Soc. Sec. Admin., 690 15 F.3d 1132, 1136 (9th Cir. 2012), quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th 16 Cir. 2008)). Where the overall number of hours expended was reasonable, some courts decline to 17 do a line-by-line review of billing entries for reasonableness.3 See Allen v. Berryhill, Case No. 17- 18 cv-03384-SI, 2019 WL 343422 (N.D. Cal. January 28, 2019) (70.85 hours); Thompson v. Colvin 19 (E.D. Cal., Apr. 17, 2015, No. 2:12-CV-01850-AC) 2015 WL 1767733, at *2 (63.4 hours); 20 21 Schneider v. Colvin (E.D. Cal., Feb. 9, 2016, No. 1:14-CV-0034-SKO) 2016 WL 500595, at *4 22 (55.4 hours)). 23 24

25 2 See United States Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, available at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited June 29, 2021). 26 3 Other courts routinely do conduct line-by-line reviews of fee petitions and deduct time sought for non-compensable work and for certain time entry practices. See e.g., Henderson v. Comm'r of Soc. Sec., No. 1:20-CV-0562 JLT, 2021 27 WL 2457540, at *3 (E.D. Cal. June 16, 2021) (eliminating time entries for duplicative tasks); Mallard v. Berryhill, No. 1:17-CV-01212 - JLT, 2019 WL 2389506, at *3 (E.D. Cal. June 6, 2019) (same); Neil v. Comm’r of Soc. Sec., 495 F. 28 App’x 845, 847 (9th Cir. 2012) (unpublished) (affirming reductions for clerical tasks, vague narratives, block billing, and use of quarter-hour billing increments). The issues litigated in this matter were fairly routine, namely 1) whether the ALJ 2 appropriately addressed Plaintiff’s testimony concerning limited use of her right hand in light of 3 clinical evidence of zero grip strength, and 2) whether the ALJ appropriately addressed the impact 4 5 of the in-home supportive care certification statement on which Plaintiff’s physician opined she

6 required assistance with daily activities. The administrative record was also fairly concise at 737

7 pages. Although 50.8 total hours is perhaps on the higher end for a routine case, it is not facially

8 unreasonable. It is well within the range of reasonableness when compared with fee awards granted

9 in other cases, as cited above. A 10% global reduction is unwarranted. 10 b. Time Spent on Unmeritorious Arguments 11 Defendant argues that reductions are warranted in light of time Plaintiff spent litigating an 12 13 unfruitful argument, namely the impact of her physician’s certification statement for in-home 14 supportive care services. Defendant disputes the following three billing entries: 15 • 12/3/20 Research “independent” functioning requirement re: SSA standards. 0.75 hours 16

17 • 12/3/20-Begin to Incorporate ALJ’s ADLs findings into “clear and convincing” and the role of determining “independent functioning” when considering SSA 18 disability-in terms of a substantial evidence argument. 3.25 hours

19 • 12/4/20 Begin drafting specific and legitimate arguments as related to Dr. Rad’s 20 MSS and testimony in terms of “independent functioning.” 6.5 hours

21 In the cases cited by Defendant, the reduction applied for time spent on unmeritorious 22 arguments was predicated on the court’s finding that the Commissioner’s position was substantially 23 justified on those issues. See Opp. At 4 (citing Henshaw v. Colvin, No. 1:14-CV-01788-SKO, 2016 24 WL 3648950, at *1 (E.D. Cal. July 6, 2016) (Defendant filed an opposition asserting that the 25 Commissioner's position was substantially justified, as demonstrated by the Court's remand on only 26 one issue of the “many” raised by Plaintiff on appeal, and requesting a reduction of fees to account 27 28 for Plaintiff's counsel's “scattershot arguments” and “fail[ure] to winnow the weak arguments and emphasize the strong ones.”); Davis v. Comm'r of Soc. Sec., No. 2:18-CV-2415-WBS-KJN, 2020 2 WL 4582255, at *4 (E.D. Cal. Aug. 10, 2020) (finding that the Commissioner’s position was 3 substantially justified, in part, because “though the court only discussed the first of plaintiff's 4 5 arguments in detail, it was also noted that the ALJ's remaining analysis appeared well reasoned”),

6 report and recommendation adopted, No. 2:18-CV-2415-WBS-KJN, 2020 WL 5110627 (E.D. Cal.

7 Aug. 31, 2020)).

8 Here, by contrast, Defendant does not offer an affirmative justification for the position

9 Defendant advanced in response to Plaintiff’s third claim of error. Moreover, other precedent 10 suggests courts should not reduce fee awards where a Plaintiff succeeds on some claims while also 11 pursuing unsuccessful claims in good faith. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 440 12 13 (1983) (“Where a lawsuit consists of related claims, a plaintiff who has won substantial relief 14 should not have his attorney's fee reduced simply because the district court did not adopt each 15 contention raised.”); Eastman v. Astrue, No. 3:11-cv-00701-PK, 2013 WL 1130784 (D. Or. Jan. 16 25, 2013) *5 (finding all hours were reasonable expended in furtherance of a successful result 17 (remand) even though the court did not accept all of Plaintiff’s legal theories). 18 The one-page in-home supportive care services (IHSS) certification statement completed 19 by Dr. Rad was not the typical medical source statement submitted by physicians in that it did not 20 21 specifically address Plaintiff’s work-related functional capacity. Nevertheless, without the benefit 22 of a physician’s opinion on Plaintiff’s work-related functionality, counsel attempted to make the 23 most out of the only physician’s statement available, namely Dr. Rad’s IHSS statement. That 24 document had some theoretical relevance to the RFC insofar as the IHSS statement reflected that 25 Plaintiff was unable to independently perform one or more activities of daily living. 26 Moreover, it is not unheard of for social security claimants to submit opinions that their 27 28 physician offered in other contexts. Existing case law also suggests that a physician’s opinion should not be rejected solely because it was offered in a different context than social security 2 proceedings, and that an ALJ should apply relevant portions thereof in the social security context. 3 See, e.g., Booth v. Barnhart, 181 F. Supp. 2d 1099, 1103 (C.D. Cal. 2002) (holding the ALJ was 4 5 required to translate the relevant portions of a physician’s opinion elicited in a worker’s

6 compensation proceeding). Though counsel did not substantiate the notion that any specific work-

7 related restrictions would logically follow if Dr. Rad’s IHSS statement was credited as true, counsel

8 should not be penalized for a good faith (albeit unfruitful) attempt at researching and articulating

9 the argument. 10 c. Clerical Tasks 11 Purely clerical or administrative tasks are generally not compensable. Missouri v. Jenkins, 12 13 491 U.S. 274, 288 n.10 (1989); Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). Purely 14 clerical tasks include summons preparation, service of process, IFP applications, mailing 15 preparations, and ECF downloading or uploading, among others. Neil v. Comm’r of Soc. Sec., 495 16 F. App’x 845, 847 (9th Cir. 2012) (unpublished); Hicks v. Comm’r of Soc. Sec., No. 17 217CV02480TLNKJN, 2019 WL 2537953, at *3 (E.D. Cal. June 20, 2019); Cathey v. Comm’r of 18 Soc. Sec., 2013 WL 1694950 at *8 (E.D. Cal. Apr. 18, 2013). 19 Defendant argues that a 4-hour reduction is warranted for time spent proofreading briefs 20 21 and checking case citations. The billing narrative in question reads as follows: 22 • Finalize arguments/check case citations. 4.0 hours 23 Doc. 24-1 at 2. Defendant’s argument is unavailing. Defendant cites no case law in support of the 24 proposition that checking case citations is a purely clerical task, which is a debatable proposition. 25 Defendant cites one unpublished case in support of the proposition that proofreading is a clerical 26 task, but the actual billing entry in question here (as quoted above) does not use the word 27 28 “proofreading.” Rather, it says “finalize arguments,” suggesting the review was for substantive content and not for spelling, grammar or typos. Thus, it is not clear why Defendant believes the 2 task involved proof reading. Moreover, four hours is not an unreasonable amount of time for a 3 final round of substantive editing and citation checking of a twenty-page opening brief. 4 5 III. Order

6 Accordingly, it is ORDERED that Plaintiff’s motion for attorney fees (Doc. 24) is

7 GRANTED. Fees in an amount of $10,668.77 are awarded in favor of Plaintiff Christy Ramirez

8 and against Defendant Kilolo Kijakazi, acting Commissioner of Social Security.

9 Fees shall be made payable to Plaintiff. The Department of the Treasury shall determine 10 whether Plaintiff owes a federal debt. If she does not, then the government shall cause the payment 11 of $10,668.77 in fees to be made directly to Plaintiff’s Counsel, Jonathan O. Peña, pursuant to the 12 13 assignment executed by Plaintiff.4 14 15 IT IS SO ORDERED.

16 Dated: October 26, 2021 /s/ Gary S. Austin 17 UNITED STATES MAGISTRATE JUDGE

18 19

20 21 22 23 24 25 26 27 28 4 See Astrue v. Ratliff, 560 U.S. 586, 593, 597 (2010).