Ellsworth-Glasman v. Colvin, No. 3:2015cv05085 - Document 22 (W.D. Wash. 2015)
Court Description: ORDER granting 17 Motion for Attorney Fees and Expenses and for Costs - by Judge J Richard Creatura.(SH)
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Ellsworth-Glasman v. Colvin Doc. 22 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 KIMBERLY ELLSWORTHGLASMAN, Plaintiff, 12 13 14 15 16 v. CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, CASE NO. 15-cv-5085-JRC ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT Defendant. 17 18 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and 19 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. 20 Magistrate Judge and Consent Form, ECF No. 3; Consent to Proceed Before a United 21 States Magistrate Judge, ECF No. 4). This matter comes before the Court on plaintiff’s 22 contested motion for attorney’s fees pursuant to the Equal Access to Justice Act, 28 23 U.S.C. § 2412 (hereinafter “EAJA”) (see ECF Nos. 17-21). 24 ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 1 Dockets.Justia.com 1 Subsequent to plaintiff’s success at obtaining a reversal of the decision of the 2 Social Security Administration, defendant Acting Commissioner challenged plaintiff’s 3 request for statutory attorney’s fees on the grounds that defendant’s position in this 4 5 matter was justified in substance and had a reasonable basis in fact and law. Because this Court disagrees, and because the requested fees are reasonable, 6 plaintiff’s motion for statutory fees should be granted. 7 BACKGROUND and PROCEDURAL HISTORY 8 9 10 11 On July 31, 2015, this Court issued an Order reversing and remanding this matter for further consideration by the Administration (see ECF No. 15). The Court found that the ALJ failed to properly evaluate the medical evidence 12 submitted by treating psychiatrist Dr. Deborah Smith, M.D. (see id., pp. 4-11). This 13 matter was reversed pursuant to sentence four of 42 U.S.C. § 405(g) for further 14 consideration due to the harmful error in the evaluation of Dr. Smith’s opinion (see id., 15 pp. 12-13). 16 17 18 Subsequently, plaintiff filed a motion for EAJA attorney’s fees, to which defendant objected (see ECF Nos. 17, 20). Defendant asserts that the Court should not award attorney’s fees under the EAJA because defendant’s position was substantially 19 justified (ECF No. 20). Plaintiff filed a reply (see ECF No. 21). 20 STANDARD OF REVIEW 21 22 23 In any action brought by or against the United States, the EAJA requires that “a court shall award to a prevailing party other than the United States fees and other 24 expenses . . . . unless the court finds that the position of the United States was ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 2 1 substantially justified or that special circumstances make an award unjust.” 28 U.S.C. § 2 2412(d)(1)(A). 3 4 5 According to the United States Supreme Court, “the fee applicant bears the burden of establishing entitlement to an award and documenting the appropriate hours expended.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The government has the 6 burden of proving that its positions overall were substantially justified. Hardisty v. 7 Astrue, 592 F.3d 1072, 1076 n.2 (9th Cir. 2010), cert. denied, 179 L.Ed.2d 1215, 2011 8 9 10 U.S. LEXIS 3726 (U.S. 2011) (citing Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995)). Further, if the government disputes the reasonableness of the fee, then it also “has 11 a burden of rebuttal that requires submission of evidence to the district court challenging 12 the accuracy and reasonableness of the hours charged or the facts asserted by the 13 prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 139714 98 (9th Cir. 1992) (citations omitted). The Court has an independent duty to review the 15 submitted itemized log of hours to determine the reasonableness of hours requested in 16 each case. See Hensley, supra, 461 U.S. at 433, 436-37. 17 18 DISCUSSION In this matter, plaintiff clearly was the prevailing party because she received a 19 remand of the matter to the Administration for further consideration (see Order on 20 Complaint, ECF No. 15). In order to award a prevailing plaintiff attorney fees, the EAJA 21 22 23 also requires a finding that the position of the United States was not substantially justified. 28 U.S.C. § 2412(d)(1)(B). 24 ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 3 1 The Court notes that the fact that the Administration did not prevail on the merits 2 does not compel the conclusion that its position was not substantially justified. See Kali v. 3 Bowen, 854 F.2d 329, 334 (9th Cir. 1988)) (citing Oregon Envtl. Council v. Kunzman, 4 5 817 F.2d 484, 498 (9th Cir. 1987)). The Court also notes that when determining the issue of substantial justification, the Court reviews only the “issues that led to remand” in 6 determining if an award of fees is appropriate. See Toebler v. Colvin, 749 F.3d 830, 834 7 (9th Cir. 2014)). 8 9 10 The Supreme Court has squarely addressed the meaning of the term “substantially justified.” See Pierce v. Underwood, 487 U.S. 552, 564-68 (1988). The Court concluded 11 that “as between the two commonly used connotations of the word ‘substantially,’ the 12 one most naturally conveyed by the phrase before us here is not ‘justified to a high 13 degree,’ but rather ‘justified in substance or in the main’ -- that is, justified to a degree 14 that could satisfy a reasonable person.” Id. at 565. The Court continued, noting that the 15 stated definition “is no different from the ‘reasonable basis both in law and fact’ 16 formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals 17 18 that have addressed this issue.” Id. (citations omitted). In addition, as stated by the Ninth Circuit, a “substantially justified position must 19 have a reasonable basis both in law and fact.” Gutierrez v. Barnhart, 274 F.3d 1255, 1258 20 (9th Cir. 2001) (citing Pierce v. Underwood, supra, 487 U.S. at 565; Flores, supra, 49 21 22 23 F.3d at 569). The Court is to focus on whether or not the Administration was substantially justified in taking its original action; and, in defending the validity of the 24 action in court. Id. at 1259 (citing Kali, supra, 854 F.2d at 332). However, “if ‘the ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 4 1 government’s underlying position was not substantially justified,’” the Court must award 2 fees and does not have to address whether or not the government’s litigation position was 3 justified. See Toebler, supra, 749 F.3d at 832 (quoting Meier v. Colvin, 727 F.3d 867, 4 5 872 (9th Cir. 2013)). Although defendant discusses again arguments regarding the merits of the 6 underlying matter, the Court concludes that defendant has not demonstrated that the 7 reason for the reversal of this case concerned an issue with respect to which reasonable 8 9 10 minds could differ (see Response, ECF No. 20). Therefore, the Court will address whether or not defendant was substantially justified in taking its original action; and, in 11 defending the validity of the action in court, see Gutierrez, supra, 274 F.3d at 1259 12 (citing Kali, supra, 854 F.2d at 332); and, if the “substantially justified position [] ha[s] a 13 reasonable basis both in law and fact.” See Gutierrez, supra, 274 F.3d at 1258 (citations 14 omitted). 15 Here, the Court concluded that the ALJ erred by failing to provide specific and 16 legitimate reasons supported by substantial evidence for discrediting the opinion of Dr. 17 18 Smith (see ECF No. 15, p. 7). First, the Court found that the ALJ’s rejection of Dr. Smith’s opinion regarding physical limitations because she had not treated plaintiff for 19 physical symptoms showed “a misunderstanding of the diagnosis of pain disorder” (see 20 id.). Contrary to the ALJ’s assertion, Dr. Smith had reviewed plaintiff’s physical medical 21 22 23 history and, seeing no indication of malingering behavior, had the relationship as plaintiff’s treating psychiatrist to assess and concur with the diagnosis of pain disorder, in 24 which psychological factors have an important role in the pain experienced (see id., p. 8). ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 5 1 Second, the Court found that, even inferring from the ALJ’s opinion which 2 activities she found contradictory to Dr. Smith’s opinion though they were not listed, 3 substantial evidence did not support that reason for discrediting the opinion (see id., p. 9). 4 5 Specifically, the Court noted that Dr. Smith had knowledge of plaintiff’s lifestyle and still found her not to be capable of any exertional level of activity on a consistent basis (see 6 id.). The ALJ finding a contradiction where Dr. Smith did not was an improper 7 substitution of her own lay opinion under those circumstances (see id.). 8 9 10 Based on the above stated errors, the Court reversed and remanded the ALJ’s decision (see id., pp. 12-13). Discounting a physician’s opinion without proper 11 justification is a “basic and fundamental” error. Shafer v. Astrue, 518 F.3d 1067, 1071-72 12 (9th Cir. 2008). Absent special circumstances, which defendant has failed to show exist 13 in this case, “the defense of basic and fundamental errors . . . is difficult to justify.” 14 Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998). 15 Defendant reiterates arguments regarding the merits of the underlying issue and 16 argues that the ALJ’s position had a reasonable basis because Dr. Smith’s opinion was 17 18 inadequately supported by clinical findings (see ECF No. 20, p. 3). Defendant also argues that the record supports the reasonableness of the ALJ’s finding that plaintiff’s activities 19 were inconsistent with Dr. Smith’s opinion (see id., p. 4). However, as discussed above, 20 the ALJ’s first reason was not legitimate within the context of plaintiff’s diagnosis, and 21 22 23 the ALJ’s second reason was an improper substitution of her own lay opinion because Dr. Smith had the same information about plaintiff’s activities. Thus, defendant’s arguments 24 are not persuasive, and the Court concludes that defendant has not demonstrated that the ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 6 1 sole reason for the reversal of this case was regarding an issue with respect to which 2 reasonable minds could differ. 3 4 5 The ALJ’s decision was unsupported by substantial evidence and based on legal error given her failure to state legally sufficient reasons to support the decision to deny benefits. The Court concludes that with respect to the ALJ’s decision and the 6 Administration’s defense of said decision before this Court regarding the conclusive issue 7 herein, the Administration’s position was not substantially justified. The Court also 8 9 10 concludes that there are no special circumstances which render an EAJA award in this matter unjust. Accordingly, the Court will award plaintiff attorney’s fees under the 11 EAJA. 12 Therefore, all that remains is to determine the amount of a reasonable fee. See 28 13 U.S.C. § 2412(b); Hensley, supra, 461 U.S. at 433, 436-37; see also Roberts v. Astrue, 14 2011 U.S. Dist. LEXIS 80907 (W.D. Wash. 2011), adopted by 2011 U.S. Dist. LEXIS 15 80913 (W.D. Wash. 2011). 16 17 18 Once the court determines that a plaintiff is entitled to a reasonable fee, “the amount of the fee, of course, must be determined on the facts of each case.” Hensley, supra, 461 U.S. at 429, 433 n.7. According to the U.S. Supreme Court, “the most useful 19 starting point for determining the amount of a reasonable fee is the number of hours 20 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 21 22 23 supra, 461 U.S. at 433. Here, plaintiff prevailed on the single claim of whether or not the denial of her 24 social security application was based on substantial evidence in the record as a whole and ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 7 1 not based on harmful legal error. When the case involves a “common core of facts or will 2 be based on related legal theories . . . . the district court should focus on the 3 significance of the overall relief obtained by the plaintiff in relation to the hours 4 5 reasonably expended on the litigation.” See Hensley, supra, 461 U.S. at 435. The Supreme Court concluded that where a plaintiff “has obtained excellent results, his 6 attorney should recover a fully compensatory fee.” Id. 7 The Court concludes based on a review of the relevant evidence that the plaintiff 8 9 10 here obtained excellent results. Therefore, the Court will look to “the hours reasonably expended on the litigation,” which, when combined with the reasonable hourly rate, 11 encompasses the lodestar. See Hensley, supra, 461 U.S. at 435. Other relevant factors 12 identified in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714, 717-19 (5th Cir. 13 1974) “usually are subsumed within the initial calculation of hours reasonably expended 14 at a reasonably hourly rate.” 1 See Hensley, supra, 461 U.S. at 434 n.9 (other citation 15 omitted); see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) 16 (adopting Johnson factors); Stevens v. Safeway, 2008 U.S. Dist. LEXIS 17119 at *40-*41 17 18 (C.D. Cal. 2008) (“A court employing th[e Hensley lodestar method of the hours reasonably expended multiplied by a reasonable hourly rate] to determine the amount of 19 an attorney’s fees award does not directly consider the multi-factor test developed in 20 21 22 23 24 1 The Johnson factors are: (1) The time and labor involved; (2) the novelty and difficulty of the questions involved; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent: (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10); the ‘undesirability’ of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. Johnson, supra, 488 F.2d at 717-19) (citations omitted); see also United States v. Guerette, 2011 U.S. Dist. LEXIS 21457 at *4-*5 (D. Hi 2011) (“factors one through five have been subsumed” in the determination of a number of hours reasonably expended multiplied by a reasonable rate); but see City of Burlington v. Dague, 505 U.S. 557 (1992) (rejecting factor 6 of contingent nature of the fee). ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 8 1 Johnson, supra, 488 F.2d at 717-19, and Kerr, supra, 526 F.2d at 69-70”); but see 2 Goodwin v. Astrue, 2012 U.S. Dist. LEXIS 97651 at *10-*12, *14-*20 (W.D. Wash. 3 2012) (applying Johnson factors), adopted by 2012 U.S. Dist. LEXIS 97650 (W.D. 4 5 Wash. 2012). These guidelines are consistent with Washington Rules of Professional Conduct 1.5. 6 Given the facts and circumstances of the matter herein, and based on the briefing, 7 declarations and attorney time sheet, the Court concludes that the amount of time 8 9 10 incurred by plaintiff’s attorney in this matter is reasonable. Specifically, following a review of plaintiff’s request, the Court finds reasonable 11 plaintiff’s request for expenses in the amount of $20.07 and for attorney’s fees in the 12 amount of $5,197.23, representing 27.4 hours of work, for a total award of $5,217.30. 13 CONCLUSION 14 Plaintiff’s request for $20.07 in expenses is granted pursuant to the EAJA, 28 15 U.S.C. § 2412. 16 17 18 In addition, costs in the amount of $400 are awarded to plaintiff pursuant to 28 U.S.C. § 1920. Finally, plaintiff is awarded $5,197.23 in attorney’s fees, representing 27.4 hours 19 of work, for a total award of $5,217.30, pursuant to the EAJA and consistent with Astrue 20 v. Ratliff, 130 S. Ct. 2521, 2524, 2010 U.S. LEXIS 4763 at ***6-***7 (2010). 21 22 23 Plaintiff’s award is subject to any offset allowed pursuant to the Department of Treasury’s Offset Program. See id. at 2528. The checks for EAJA fees and expenses and 24 ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 9 1 for costs shall be mailed to plaintiff’s counsel, Stephen A. Maddox, Esq., at Maddox & 2 Laffoon, P.S., 410-A South Capitol Way, Olympia, WA 98501. 3 Dated this 16th day of November, 2015. 4 5 A 6 J. Richard Creatura United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER ON PLAINTIFF’S CONTESTED MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT - 10
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