(SS) Ohman v. Commissioner of Social Security

[6] 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA [9] 10 DEBBIE OHMAN, No. 2:16-cv-2722-JAM-EFB 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 ANDREW SAUL, Commissioner of Social Security, [14] Defendant. [16] 17 Plaintiff moves for an award of attorney’s fees and costs under the Equal Access to Justice 18 Act (“EAJA”), 28 U.S.C. § 2412 (d)(1). ECF No. 24. She seeks attorney fees in the amount of 19 $9,707.45 based on 40.6 hours of work performed by attorney Andrew Koenig and 8.8 hours of 20 work performed by associate attorney Gwen Jones at rates ranging from $192.68 to $196.79 per 21 hour.1 Id. at 10-11 . She also seeks $400.00 in costs. Id. at 11 . Defendant argues that plaintiff is 22 not entitled to reasonable attorney fees under the EAJA because the Commissioner’s position was 23 substantially justified. ECF No. 26 at 1-2. Alternatively, she argues that the number of hours 24 sought is unreasonable and should be reduced accordingly. Id. As explained below, the 25 Commissioner’s position was not substantially justified, and it is recommended that plaintiff’s 26 motion be granted. [27] 1 Plaintiff seeks an hourly rate of $192.68 for work performed in 2016, and $196.79 for 28 work performed in 2017 and 2018. ECF No. 24 at 10-11. 1 I. Substantial Justification 2 The EAJA provides that a prevailing party other than the United States should be awarded 3 fees and other expenses incurred by that party in any civil action brought by or against the United 4 States, “unless the court finds that the position of the United States was substantially justified or 5 that special circumstances make an award unjust.” 28 U.S.C. § 2412 (d)(1). “[T]he ‘position of 6 the United States’ means, in addition to the position taken by the United States in the civil action, 7 the action or failure to act by the agency upon which the civil action is based.” Gutierrez v. 8 Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001) (citing 28 U.S.C. § 2412 (d)(2)(D) and Comm’r 9 INS v. Jean, 496 U.S. 154, 159 (1990) (explaining that the “position” relevant to the inquiry “may 10 encompass both the agency’s prelitigation conduct and the [agency’s] subsequent litigation 11 positions”)). Therefore, the court “must focus on two questions: first, whether the government 12 was substantially justified in taking its original action; and, second, whether the government was 13 substantially justified in defending the validity of the action in court.” Kali v. Bowen, 854 F.2d 14 329, 332 (9th Cir. 1988). The burden of establishing substantial justification is on the 15 government. Gutierrez, 274 F.3d at 1258 (9th Cir. 2001). 16 A position is “substantially justified” if it has a reasonable basis in law and fact. Pierce v. 17 Underwood, 487 U.S. 552, 565-66 (1988); United States v. Marolf, 227 F.3d 1156, 1160 (9th Cir. 18 2002). Substantially justified has been interpreted to mean “justified to a degree that could satisfy 19 a reasonable person” and “more than merely undeserving of sanctions for frivolousness.” 20 Underwood, 487 U.S. at 565 ; see also Marolf, 277 F.3d at 161. The mere fact that a court 21 reversed and remanded a case for further proceedings “does not raise a presumption that [the 22 government’s] position was not substantially justified.” Kali, 854 at 335; see also Lewis v. 23 Barnhart, 281 F.3d 1081, 1084-86 (9th Cir. 2002) (finding the defense of an ALJ’s erroneous 24 characterization of claimant’s testimony was substantially justified because the decision was 25 supported by a reasonable basis in law, in that the ALJ must assess the claimant’s testimony and 26 may use that testimony to define past relevant work as actually performed, as well as a reasonable 27 basis in fact, since the record contained testimony from the claimant and a treating physician that 28 cast doubt on the claimant’s subjective testimony); Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 1 2008) (finding that the government’s position that a doctor the plaintiff had visited five times over 2 three years was not a treating doctor, while incorrect, was substantially justified since a 3 nonfrivolous argument could be made that the five visits over three years were not enough under 4 the regulatory standard especially given the severity and complexity of plaintiff’s alleged mental 5 problems). 6 However, when the government violates its own regulations, fails to acknowledge settled 7 circuit law, or fails to adequately develop the record, its position is not substantially justified. See 8 Gutierrez, 274 F.3d at 1259-60 ; Sampson v. Chater, 103 F.3d 918, 921-22 (9th Cir. 1996) 9 (finding that the ALJ’s failure to make necessary inquiries of the unrepresented claimant and his 10 mother in determining the onset date of disability, as well as his disregard of substantial evidence 11 establishing the same, and the Commissioner’s defense of the ALJ’s actions, were not 12 substantially justified); Flores v. Shalala, 49 F.3d 562, 570, 572 (9th Cir. 1995) (finding no 13 substantial justification where ALJ ignored medical reports, both in posing questions to the VE 14 and in his final decision, which contradicted the job requirement that the ALJ deemed claimant 15 capable of performing); Corbin v. Apfel, 149 F.3d 1067, 1053 (9th Cir. 1998) (finding that the 16 ALJ’s failure to determine whether the claimant’s testimony regarding the impact of excess pain 17 she suffered as a result of her medical problems was credible, and whether one of her doctors’ 18 conduct, were not substantially justified); Crowe v. Astrue, 2009 WL 3157438 , *1 (E.D. Cal. 19 Sept. 28, 2009) (finding no substantial justification in law or fact based on ALJ’s improper 20 rejection of treating physician opinions without providing the basis in the record for so doing); 21 Aguiniga v. Astrue, 2009 WL 3824077 , *3 (E.D. Cal. Nov.13, 2009) (finding no substantial 22 justification in ALJ’s repeated mischaracterization of the medical evidence, improper reliance on 23 the opinion of a non-examining State Agency physician that contradicted the clear weight of the 24 medical record, and improperly discrediting claimant’s subjective complaints as inconsistent with 25 the medical record). 26 The court granted plaintiff’s motion for summary judgement and remanded the matter 27 back to the Commissioner for further proceedings, finding that the ALJ erred in rejecting the 28 opinion of plaintiff’s treating physician, Dr. Amajdi. ECF No. 22. In rejecting Dr. Amajdi’s 1 opinion, the ALJ made several errors. First, the ALJ inaccurately and vaguely characterized 2 plaintiff’s medical care as “conservative.” ECF No. 19 at 12-14; see Regenniter v. Comm’r of 3 Soc. Sec. Admin., 166 F.3d 1294 , 1297 (9th Cir. 1999) (an “inaccurate characterization” of the 4 evidence cannot serve as substantial evidence to support the ALJ’s conclusion). Not only did the 5 ALJ fail to identify any evidence supporting his finding of conservative treatment, but the record 6 did not support that conclusion. Dr. Amajdi’s prescribed Flexeril and Valium and made a referral 7 for trigger point injections. As the court explained, such treatment cannot be characterized as 8 conservative in light of plaintiff’s impairments, which included fibromyalgia and systemic lupus 9 erythematosus, both uncurable conditions.2 Id.; see Lapierre-Gutt v. Astrue, 382 F. App’x 662 , 10 664 (9th Cir. 2010) (a claimant “cannot be discredited for failing to pursue non-conservative 11 treatment options where none exists.”). 12 The ALJ’s remaining reason for rejecting Dr. Amajdi’s opinion—a purported 13 inconsistency with plaintiff’s intermittent non-compliance with treatment—was equally deficient. 14 As the court explained, all the records cited by the ALJ either failed to demonstrate non15 compliance with prescribed treatment or had no relation to Dr. Amajdi’s treatment of plaintiff. 16 For instance, the ALJ noted plaintiff skipped her yearly treatment for osteoporosis, a condition 17 Dr. Amajdi did not treat and the ALJ found to be non-severe. 18 Given that the ALJ’s findings were vague, contrary to the evidence of record, and that the 19 proper legal standards were not applied, the Commissioner’s position was not substantially 20 justified. See Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008) (“The government’s position 21 must be substantially justified at each state of the proceedings.”); see also Meier v. Colvin, 727 22 F.3d 867, 872 (9th Cir. 2013) (“A holding that the agency’s decision was unsupported by 23 substantial evidence is a strong indication that the position of the United States was not [24] 2 See, e.g., Miller v. Colvin, 2014 WL 1873276 , at *2 (C.D. Cal. May 9, 2014); Ardito v. [25] Astrue, 2011 WL 2174891 , at *4 (C.D. Cal. June 3, 2011) (finding narcotic prescriptions and 26 muscle relaxers to be anything but conservative treatment); Ponce v. Astrue, 2011 WL 253970 , at *7 (C.D. Cal. Jan. 26, 2012) (finding that treatment with medication and trigger injections were 27 not conservative); See also Para v. Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (finding that conservative treatment, including use of only over-the-counter medication for pain, supported 28 adverse credibility finding). 1 substantially justified.”); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (“[I]t will be 2 only a ‘decidedly unusual case in which there is substantial justification under the EAJA even 3 though the agency’s decision was reversed as lacking in reasonable, substantial and probative 4 evidence in the record.’”). 5 II. Reasonableness of Fee Request 6 The Commissioner also argues that the number of hours counsel expended in litigating 7 this case was unreasonable. ECF No. 26 at 7-14. The EAJA directs the court to award a 8 reasonable fee. 28 U.S.C. § 2412 (d)(2)(A). In determining whether a fee is reasonable, the court 9 considers the hours expended, the reasonable hourly rate and the results obtained. See Comm’r, 10 INS v. Jean, 496 U.S. 154 (1990); Hensley v. Eckerhart, 461 U.S. 424 (1983); Atkins v. Apfel, 154 11 F.3d 986 (9th Cir. 1998). “[E]xcessive, redundant, or otherwise unnecessary” hours should be 12 excluded from a fee award, and charges that are not properly billable to a client are not properly 13 billable to the government. Hensley, 461 U.S. at 434 . An award of fees should be properly 14 apportioned to pursuing the stages of the case in which the government lacked substantial 15 justification.” Corbin, 149 F.3d 1053 ; Flores, 49 F.3d at 566-71 . 16 Here, defendant does not object to the hourly rate being requested but contends that the 17 number of hours expended by plaintiff’s counsel was unreasonable. ECF No. 26 at 8-14. First, 18 defendant argues that because plaintiff only prevailed on one of three issues, plaintiff cannot 19 recover EAJA fees for time spent on the two remaining issues. Id. at 8. In Hensley v. Eckerhart, [20] 461 U.S. 424, 434 (1983), the Supreme Court explained that an attorney may not be entitled to an 21 award for work on “distinctly different claims for relief that are based on different facts and legal 22 theories.” However, the Court recognized that some cases present a single claim for relief that 23 involves a common core of facts and is based on related legal theories, and that in those cases, 24 “the district court should focus on the significance of the overall relief obtained by the plaintiff in 25 relation to the hours reasonably expended on the litigation” and “[w]here a plaintiff has obtained 26 excellent results, his attorney should recover a fully compensatory fee.” Hensley, 461 U.S. at 435 . 27 “Social Security appeals are akin to a single claim for relief based on one set of facts and 28 involving related legal theories.” Belcher v. Astrue, 2010 WL 5111435 , at *3 (E.D. Cal. Dec. 9, 1 2010). Therefore, plaintiff’s fee award should not be reduced solely because she failed to prevail 2 on every issue. 3 Next, defendant argues that plaintiff’s request should be reduced by 1.9 hours for work 4 performed prior to commencing the civil action. ECF No. 26 at 9. Defendant cites to 28 U.S.C. 5 § 2412(d) and Melkonyan v. Sullivan, 501 U.S. 89 (1991), to support the proposition that work 6 performed prior to the filing of the complaint is not compensable under the EAJA. Neither the 7 statute nor Melkonyan support defendant’s contention. 8 Section 2412(d) provides that the “court shall award to a prevailing party . . . fees and 9 other expenses . . . incurred by that party in any civil action . . . .” 28 U.S.C. § 2412 (d)(1)(A). 10 The statute does not, however, limit fees to work performed after the civil action is initiated. 11 Kuharski v. Colvin, 2015 WL 1530507 , at *4 (E.D. Cal. Apr. 3, 2015). Indeed, courts have found 12 that such work is necessary and compensable. See, e.g., Tate v. Colvin, 2013 WL 5773047 , at *4 13 (E.D. Cal. 2013) (“As a practical matter, some work must be performed to initiate the civil suit— 14 a part of which includes reviewing the facts and the law to ensure the lawsuit is not frivolous as 15 well as drafting and filing the necessary documents to commence the action. Such work is wholly 16 separate from the underlying administrative proceedings and is clearly related to the civil action 17 . . . .”). 18 Furthermore, contrary to defendant’s contention, Melkonyan does not stand for the 19 proposition that “compensation is not permitted for work performed before a suit has been 20 brought in a court.” ECF No. 26 at 9 (quotations omitted). In Melkonyan, the Supreme Court 21 summarized and explained its prior holding in Sullivan v. Hudson, 490 U.S. 877 (1989). It 22 explained that in Sullivan, the court found that section 2412(d) permitted an award of fees for 23 work performed at the administrative level “in those cases where the district court retains 24 jurisdiction of the civil action and contemplates entering a final judgment following the 25 completion of administrative proceedings.” Melkonyan, 501 U.S. at 97 . It further noted that in 26 Sullivan “[w]e did not say that proceedings on remand to an agency are ‘part and parcel’ of a civil 27 action in federal district court for all purposes.” Id. Thus, the section of Melkonyan cited by 28 defendant merely observes that administrative proceedings are generally not part of a civil action. 1 The court did not, however, address the issue as to whether work performed in preparation of 2 filing a civil complaint is compensable under the EAJA. Accordingly, Melkonyan does not 3 preclude plaintiff from recovering fees for work performed prior to the filing of the complaint. 4 Defendant also argues that plaintiff impermissibly seeks compensation for unnecessary 5 tasks. ECF No. 26 at 9-10. First, defendant contends that plaintiff improperly seeks 13 hours of 6 compensation for drafting a case summary for plaintiff’s motion for summary judgment. Id. at 97 10. Counsel’s billing records reflect that only 10.4 hours were spent on this task.3 ECF No. 27 at 8 7. Furthermore, attorney Gwen Jones did not represent plaintiff at the administrative level and 9 had to become familiar with the case, which included a 689-page administrative transcript 10 containing 369 pages of medical records. Given the size of the record, the court cannot agree 11 with defendant’s contention that it was unreasonable for plaintiff’s counsel to spend 10.4 hours 12 reviewing the record and summarizing the relevant facts. 13 Defendant further argues that plaintiff impermissibly seeks 1.2 hours for clerical tasks, 14 including reviewing all notices issued by the court. ECF No. 26 at 10. The U.S. Court of 15 Appeals for the Ninth Circuit has explained that “[i]t simply is not reasonable for a lawyer to bill, 16 at her regular hourly rate, for tasks that a non-attorney employed by her could perform at a much 17 lower cost.” Davis v. City & County of San Francisco, 976 F.2d 1536 , 1543 (9th Cir. 1993). “It 18 is appropriate to distinguish between legal work, in the strict sense, and investigation, clerical 19 work, compilation of facts and statistics and other work which can often be accomplished by non20 lawyers but which a lawyer may do because he has no other help available.” Missouri v. Jenkins, [21] 491 U.S. 274 , 288 n.10 (1989). “[C]osts associated with clerical tasks are typically considered 22 overhead expenses reflected in an attorney’s hourly billing rate, and are not properly 23 ///// 24 ///// [26] 3 Plaintiff seeks 1.6 hours of compensation for work done by Andrew Koenig in drafting an outline of the opening brief and legal arguments to give proper context and understanding to 27 his associate before she drafted the case summary. Plaintiff also seeks 8.8 hours of compensation for work done by Gwen Jones in summarizing all medical, testimonial, and other relevant facts 28 for the opening brief. ECF No. 27 at 6-7. 1 reimbursable.” Bakeell v. Astrue, 2013 WL 638892 , at * 3 (D. Or. Jan. 9, 2013) (citing Jenkins, [2] 491 U.S. at 288 n.10)); see also Nadarajoh v. Holder, 569 F.3d 906, 921 (9th Cir. 2009) 3 (reducing hours billed at paralegal rate for the performance of clerical work). 4 The court has reviewed counsel’s billing records and finds that counsel seeks 5 compensation for a total of 1.2 hours spent reviewing and documenting all notices issued by the 6 court. ECF No. 24 at 8-10. The court agrees with plaintiff’s contention that it is counsel’s 7 responsibility to review all court notices in order to properly litigate a case and meet all deadlines. 8 ECF No. 27 at 7. Furthermore, the 1.2 total hours spent reviewing the various notices and court 9 documents was not unreasonable. 10 Finally, defendant argues that the number of hours spent drafting plaintiff’s opening brief 11 and reply brief was excessive in light of the routine nature of this case. ECF No. 26 at 11-13. 12 Accordingly, he requests that the 27.9 hours in compensation plaintiff seeks for completing these 13 tasks be reduced to 14 hours. Id. at 13. “Social security cases are fact-intensive and require a 14 careful application of the law to the testimony and documentary evidence, which must be 15 reviewed and discussed in considerable detail.” Id.; see also Costa v. Comm’r of Soc. Sec. 16 Admin., 690 F.3d 1132 , 1134 n.1 (9th Cir. 2012) (“[T]he term ‘routine’ is a bit of a misnomer as 17 social security disability cases are often highly fact-intensive and require careful review of the 18 administrative record, including complex medical evidence.”). Here, the opening brief and reply 19 brief submitted by plaintiff’s counsel were thorough and evidenced attention to detail. 20 Accordingly, the court finds that the 15.3 hours spent preparing the opening brief and 12.6 hours 21 preparing the reply brief is time that was reasonably and necessarily expended in litigating this 22 case. See Moreno, 534 F.3d at 1112 (“By and large, the court should defer to the winning 23 lawyer’s professional judgment as to how much time he was required to spend on the case; after 24 all, he won, and might not have, had he been more of a slacker.”); Hensley, 461 U.S. at 435 25 (“Where a plaintiff has obtained excellent results, his attorney should recover a fully 26 compensatory fee.”). 27 ///// 28 ///// 1 III. Payment of Fees to Plaintiff 2 Lastly, defendant requests that any fee award be made to plaintiff. Astrue v. Ratliff, 560 3 U.S. 586 (2010) requires fees awarded under the EAJA to be paid directly to the litigant. 4 However, courts in this district regularly order payment directly to counsel so long as plaintiff 5 does not have a debt that is subject to offset and the plaintiff assigned her right to EAJA fees to 6 counsel. See, e.g., Allen v. Colvin, 2014 WL 6901870 at *3 (E.D. Cal. 2014); Knyazhina v. 7 Colvin, 2014 WL 5324302 at *3 (E.D. Cal. 2014); Louis v. Astrue, 2012 WL 92884 at *7 (E.D. 8 Cal. 2012 ); Burnham v. Astrue, 2011 WL 6000265 at *2 (E.D. Cal. 2011); and Calderon v. 9 Astrue, 2010 WL 4295583 at *8 (E.D. Cal. 2010). Here, plaintiff assigned her right to EAJA fees 10 to her attorney. ECF No. 27-1. Accordingly, should plaintiff not have a debt subject to offset, it 11 is recommended that the award of fees be paid directly to counsel. 12 IV. Conclusion 13 Based on the foregoing, the court finds that the plaintiff’s counsel reasonably spent 3.4 14 hours in 2016, at a rate of $192.68, and 37.2 hours in 2017 and 2018, at a rate of $196.79, 15 litigating this case. The court also finds that counsel’s associate reasonably spent 8.8 hours 16 litigating this case in 2017, at a rate of $196.79. Furthermore, plaintiff’s counsel reasonably spent 17 3.1 hours reviewing defendant’s opposition to the fee motion and preparing a reply brief, at a rate 18 of $200.78 per hour. See Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998) (under the EAJA, 19 reasonable time spent litigating fees is compensable). Plaintiff is also entitled to costs in the 20 amount of $400.00. Accordingly, the court finds that counsel is entitled to $10,729.87 in 21 attorney’s fees and costs. 22 Accordingly, it is hereby RECOMMENDED that: 23 1. Plaintiff’s motion for attorney’s fees (ECF No. 24) be granted; 24 2. Plaintiff be awarded attorney’s fees under the EAJA in the amount of $10,329.87, plus 25 $400.00 for costs, for a total award of $10,729.87; and 26 3. Pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), it is recommended that any payment 27 be made payable to plaintiff and delivered to plaintiff’s counsel, unless plaintiff does not owe a 28 federal debt. If the United States Department of the Treasury determines that plaintiff does not 1 | owe a federal debt, it is recommended that the government accept plaintiff's assignment of EAJA 2 || fees and pay fees directly to plaintiffs counsel. 3 These findings and recommendations are submitted to the United States District Judge 4 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days 5 || after being served with these findings and recommendations, any party may file written 6 || objections with the court and serve a copy on all parties. Such a document should be captioned 7 | “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 8 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 9 | Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). 10 | DATED: March 2, 2020. i tid, PDEA EDMUND F. BRENNAN 2 UNITED STATES MAGISTRATE JUDGE