(SS) Shah v. Commissioner of Social Security

Opinion

PARIMAL K. SHAH, No. 2:19-cv-01184-KJN Plaintiff, ORDER ON MOTION FOR ATTORNEYS’ FEES UNDER THE EAJA v. (ECF No. 20) SECURITY, Defendant. Plaintiff commenced this social security action on June 26, 2019. (ECF No. 1.)1 On June 4, 2020, the court granted plaintiff’s motion for summary judgment in part, remanded the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g), and entered judgment for plaintiff. (ECF Nos. 16, 17.) Plaintiff now moves for attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”). (ECF No. 20.) The Commissioner filed an opposition to plaintiff’s motion, and plaintiff filed a reply brief. (ECF Nos. 22, 23.) For the reasons set forth below, the court grants plaintiff’s motion for EAJA fees. //// ////

1 This case was referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15) and both parties voluntarily consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (ECF Nos. 5, 7.) The EAJA provides, in part, that: Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. A party seeking an award of fees and other expenses shall, within thirty days of final 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 under this subsection, and the amount sought, including an itemized statement from 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 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 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 action is based) which is made in the civil action for which fees and other expenses are sought. The court, in its discretion may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy. 28 U.S.C. § 2412(d)(1)(A)-(C). Here, the Commissioner does not dispute that plaintiff is a prevailing party, because he successfully obtained a remand for further proceedings under sentence four of 42 U.S.C. § 405(g); Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). Furthermore, plaintiff’s application for EAJA fees is timely, because it was filed within thirty days of final judgment in this action.2 Nevertheless, the Commissioner argues that plaintiff is not entitled to an award of

2 The term “final judgment” for purposes of the EAJA “means a judgment that is final and not appealable....” 28 U.S.C. § 2412(d)(2)(G). The court entered judgment for plaintiff on June 4, 2020. (ECF No. 17.) The judgment became a non-appealable “final judgment” 60 days later on August 4, 2020. See Fed. R. App. P. 4(a)(1)(B) (providing that the notice of appeal may be filed by any party within 60 days after entry of the judgment if one of the parties is the United States, a United States agency, or a United States officer or employee sued in an official capacity). fees under the EAJA because the position of the Commissioner was substantially justified. See Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 1995) (holding that claimant is entitled to attorneys’ fees unless the government shows that its position “with respect to the issue on which the court based its remand was ‘substantially justified’”). In the alternative, the Commissioner argues that plaintiff’s fees should be reduced. Substantial Justification The burden of establishing substantial justification is on the government. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). In Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme Court defined “substantial justification” as: “justified in substance or in the main” – that is, justified to a degree that could satisfy a reasonable person. That is no different from the “reasonable basis in both law and fact” formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue. Id. at 565. A position does not have to be correct to be substantially justified. Id. at 566 n.2; see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). In determining substantial justification, the court reviews both the underlying governmental action being defended in the litigation and the positions taken by the government in the litigation itself. Gutierrez, 274 F.3d at 1259. The Commissioner’s argument that its position in this case was substantially justified is unpersuasive. As discussed in detail in the court’s prior order,3 the ALJ failed to provide germane reasons for discounting plaintiff’s PTSD diagnosis at Step Two and similarly failed to incorporate plaintiff’s PTSD or other mental impairments into plaintiff’s RFC. As the court previously found, “the ALJ’s characterization of plaintiff’s PTSD appears to be a ‘cherry-picking’ of the record—of which courts in the Ninth Circuit have consistently disapproved.” (ECF No. 16 at 6 (citing Hutchinson v. Colvin, 2016 WL 6871887, *4 (W.D. Wash., Nov. 22, 2016) (noting

Accordingly, plaintiff was required to file an application for EAJA fees no later than 30 days after the “final judgment,” i.e., by September 3, 2020. Plaintiff’s September 1, 2020 application is therefore timely. 3 The court does not repeat its analysis of the substantive issues here, but instead refers the parties to its June 4, 2020 order. (See ECF No. 16.) the ALJ’s treatment of the evidence at Step Two suggested improper “cherry-picking” to support the ALJ’s decision “while failing to address aspects of the record supporting a finding of severe limitations”) citing Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014)).) Similarly, the court found that the ALJ’s inconsistency in observing that no mental health visits were documented since 2011, then directly following that statement noting that plaintiff “started mental health treatment again in 2017” was “inexplicable.” (Id. at 5.) The court then noted some “glaring issues” in formulating plaintiff’s RFC, particularly concerning plaintiff’s mental limitations. (Id. at 7.) Specifically, the court noted that the ALJ failed to address plaintiff’s testimony that his ability to work full-time was limited by his PTSD, and that his doctor corroborated this testimony. (Id. at 9 (citing C.F.R. § 404.1545).) The court also found that the ALJ did not sufficiently consider the combined effects of plaintiff’s impairments. (Id. at 10 (citing 42 U.S.C. § 423 (“In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity.”).) Ultimately, the court concluded that the ALJ’s failure to include any limitations due to plaintiff’s PTSD, and failure to offer a sufficient reason for this omission, constituted error. (Id.) Although the Commissioner attempts to demonstrate substantial justification by showing how the ALJ could potentially have weighed the evidence of plaintiff’s PTSD against other record evidence, and what germane reasons the ALJ could potentially have used to discount the defendant’s PTSD, the fact remains that the ALJ failed to perform such analysis in contravention of well-established Ninth Circuit case law. As such, the Commissioner’s position during the administrative proceedings, and its defense of that position in the litigation before this court, were not substantially justified. To be sure, there are several ambiguities and inconsistencies in the record evidence, and for that reason, the court declined to remand the case for payment of benefits. However, it is the ALJ’s duty in the first instance to set forth sufficient reasons for the weight given to pertinent evidence, which in turn permits the court to review whether the ALJ’s findings are supported by substantial evidence in the record as a whole. Because the ALJ failed to discharge that duty, remand was warranted. Therefore, having concluded that the Commissioner’s position was not substantially justified, and that there are no other special circumstances that would make an award of EAJA fees unjust, the court finds that plaintiff is entitled to an award of fees pursuant to the EAJA. Reasonable Fees The Commissioner additionally argues that the fees plaintiff is requesting are unreasonable. According to the Commissioner, this conclusion is because counsel is inappropriately billing for clerical tasks and that a reduction is warranted due to time spent on issues not addressed by the court. (ECF No. 22 at 6-8.). The EAJA directs the court to award a reasonable fee. 28 U.S.C. § 2412(d)(2)(A). In determining whether a fee is reasonable, the court considers the reasonable hourly rate, the hours expended, and the results obtained. See Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998). “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433. “Hours that are not properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory authority.” Id. at 434 (internal quotation marks omitted). As to clerical duties, the Commissioner is correct that plaintiff cannot seek reimbursement at an attorney rate for purely clerical tasks. See Neil v. Comm’r of Soc. Sec., 495 F. App’x 845, 847 (9th Cir. 2012). However, in his reply, plaintiff agrees to reduce the 3.95 hours that the Commissioner challenges by 1 hour. (ECF No. 23-1 at 2.) Having reviewed the challenged bills the court agrees that this reduction is appropriate. Although some of the challenged entries include arguably clerical tasks, they also include work typically attributable to an attorney. For example, it appears the Commissioner challenges nearly every entry that begins with the verb “receipt” because those entries are solely “related to downloading documents from ECF.” (ECF No. 22 at 7.) However, these challenged entries also include “review” of substantive documents, including this court’s order on the parties cross-motions for summary judgment, the appeals council’s decision, and this court’s scheduling order (ECF No. 20-1, entries dated 6/4/2019, 6/4/2020, 6/26/2019) and counsel’s correspondence with her client, (id., entries dated 6/4/2019, 6/26/2019). An attorney’s review of the order that was dispositive to the parties’ cross-motions for summary judgment and correspondence with her client is not clerical in nature, and the inclusion of the term “receipt” before the term “review” or “correspondence” does not change this analysis. The Commissioner additionally challenges entries for completing and filing the complaint, serving process, and amending plaintiff’s motion for summary judgment, as well as entries it alleges are insufficiently detailed. Having reviewed these entries, the court finds that plaintiff’s proposed reduction by one hour sufficiently contemplates the reduction for the clerical work of completing and filing the complaint and serving process, as well as the alleged incomplete entries.4 See Kirk v. Berryhill, 244 F. Supp. 3d 1077, 1084 (E.D. Cal. 2017) (finding that counsel’s proposed “haircut” by 1.5 hours for time billed filing a complaint, drafting service documents, and similar tasks to be reasonable because “counsel would necessarily spend time reviewing such documents before their submission”). The Commissioner further asserts that a reduction is warranted for time spent on issues not addressed by the court’s order. (ECF No. 22 at 7-8.) If a plaintiff achieves only “partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount.” Hensley, 461 U.S. at 436. In such cases of “partial or limited success” the court is to follow a two-pronged test. Ibrahim v. U.S. Dep't of Homeland Sec., 912 F.3d 1147, 1172 (9th Cir.) (en banc). The court first asks “‘did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded?’” Id. (quoting Hensley, 461 U.S. at 434). “This inquiry rests on whether the ‘related claims involve a common core of facts or are based on related legal theories.’” Id. (quoting Webb v. Sloan, 330 F.3d 1158,

4 The court does not consider reviewing, analyzing, and amending plaintiff’s motion for summary judgment to be clerical. 1168 (9th Cir. 2003)). Second, the court is to ask “whether ‘the plaintiff achieve[d] a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?’” Id. (quoting Hensley, 461 U.S. at 434). “If the court concludes the prevailing party achieved ‘excellent results,’ it may permit a full fee award—that is, the entirety of those hours reasonably expended on both the prevailing and unsuccessful but related claims.” Id. Here, plaintiff raised two points of error: the ALJ’s finding that plaintiff’s PTSD was not severe at Step Two and the ALJ’s RFC formulation. The court reversed and remanded on both points, finding that the ALJ erred in considering plaintiff’s PTSD non-severe and erred in failing to properly consider that condition in formulating plaintiff’s RFC. (See ECF No. 16 at 6 (“Further, while the ALJ discussed plaintiff’s PTSD when formulating the RFC, there are errors in that analysis (discussed below) that preclude a ‘harmless’ designation at Step Two.”).) This is necessarily the case because, as the court noted, “[a]ny failure to classify an impairment at Step Two [is] harmless if the ALJ considered the impairment when assessing the RFC.” (Id. (quoting Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).) Therefore, the Commissioner’s request to entirely cut the 8.8 hours counsel devoted to preparing the RFC portion of plaintiff’s motion for summary judgment, because that argument was not addressed by the court, is not supported by the record. It appears that the Commissioner is asserting that time expended in arguing plaintiff’s non-PTSD conditions should be reduced. This court noted that it would “not explicitly rule on plaintiff’s other contentions (regarding plaintiff’s other physical conditions, and the ALJ’s analysis of plaintiff’s symptom testimony and the medical opinions and evidence thereof).” (ECF No. 16 at 10.) However, the undersigned continued that the “analysis concerning plaintiff’s other physical impairments appears well-reasoned,” and that the ALJ has discretion “as to how much additional analysis will be required on these issues.” (Id.) While the court opined on this analysis by the ALJ, it explicitly did not rule on plaintiff’s arguments concerning his physical impairments. As the Ninth Circuit has held, “when a district court awards complete relief on one claim, rendering it unnecessary to reach alternative claims, the alternative claims cannot be deemed unsuccessful for the purpose of calculating a fee award.” Ibrahim, 912 F.3d at 1166. Plaintiff was awarded relief by the court remanding this matter. Therefore, the Commissioner’s position cannot be sustained. Additionally, application of the two-pronged Hensley test demonstrates that plaintiff is entitled to the requested fee award. First, plaintiff’s claims of physical impairments and PTSD share a common set of facts and similar legal analysis. As the court previously noted, part of the rationale for the court reversing was due to the relationship between plaintiff’s coronary artery disease and his PTSD. (ECF No. 16 at 9-10.) The only other physical impairment that the Commissioner could be taking issue with is plaintiff’s lumbar impairments. However, as plaintiff notes, the ALJ’s failure to explain which of plaintiff’s symptoms were inconsistent with plaintiff’s daily activities and plaintiff’s “conservative treatment” is what necessitated the inclusion of plaintiff’s lumbar impairments. This necessarily involves a related legal theory and similar facts. As to the second prong, the court finds that plaintiff has achieved a sufficient level of success to make the hours expended the basis of a reasonable award. Plaintiff’s claim was remanded following counsel’s diligent work. This is a sufficient level of success in a Social Security case. While counsel expended a considerable amount of time, 61.28 hours, there were over 2,000 pages of medical records to review, and plaintiff filed a substantive motion for summary judgment and a reply. Accordingly, after an independent review of the time entries, the court finds the amount of time spent by plaintiff’s counsel to be reasonable and properly supported by the time records. Furthermore, in light of the fact that plaintiff obtained a favorable judgment remanding the case for further administrative proceedings, the amount of fees sought is consistent with the result obtained. Therefore, the court will award plaintiff EAJA attorneys’ fees in the full amount of $12,615.01.5 The court notes that plaintiff has executed an assignment of EAJA fees to plaintiff’s 5 This includes counsel’s review of the Commissioner’s opposition to the present motion, plaintiff’s reply, and the aforementioned one hour reduction. The court notes that the Commissioner has not requested to file a sur-reply, and the court finds that the time expended replying to the Commissioner’s opposition to be reasonable. See Garcia v. Colvin, 2013 WL MASS 2 ELOTTUING IN RAMU or POO Ie Ye VI

counsel. (ECF No. 20-1.) However, the EAJA award must be made by this court to plaintiff, and counsel. See Astrue v. Ratliffe, 130 S. Ct. 2521 (2010). Nevertheless, if the government determines that plaintiff does not owe a federal debt that qualifies for offset, payment may be made in the name of plaintiff's attorney. Accordingly, for the reasons outlined above, IT IS HEREBY ORDERED that: 1. Plaintiff's motion for attorneys’ fees under the EAJA (ECF No. 20) is GRANTED. 2. Plaintiff is awarded attorneys’ fees in the total amount of $12,615.01 pursuant to the EAJA. If the government determines that plaintiff does not owe a federal debt that qualifies for offset, payment may be made in the name of plaintiffs attorney. Dated: October 5, 2020 Aectl Aharon UNITED STATES MAGISTRATE JUDGE 1184.eaja 5347494, at *6 (E.D. Cal. Sept. 23, 2013) (finding “no reason to reduce the time expended by Plaintiff's counsel in reviewing the Commissioner’s opposition and drafting a reply brief” under similar circumstances).