Hasel v. Commissioner of Social Security, No. 2:2007cv00928 - Document 25 (D. Ariz. 2009)
Court Description: ORDER granting in part and denying in part 23 Motion for Attorney Fees. Plaintiff is awarded attorney's fees totaling $5,285.11, resulting from 31.75 attorney hours at an hourly rate of $166.46. That Plaintiff is awarded $350.0 0 in costs per 28 U.S.C. § 2412(a)(1), to be paid out of the Judgement Fund, as administered by the United States Department of Justice. That the attorney fee and cost award of $5,285.11 shall be made payable to Plaintiffs counsel.. Signed by Judge Mary H Murguia on 4/17/09.(DMT, )
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Hasel v. Commissioner of Social Security 1 Doc. 25 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) MICHAEL J. ASTRUE, Commissioner ) ) of Social Security, ) ) Defendant. ) ) MARY D. HASEL, Case No. CV 07-928-PHX-MHM ORDER Currently before the Court is Plaintiff Mary Hasel’s (“Plaintiff”) Application for 16 17 Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). 18 (Dkt. #23). Defendant Michael J. Astrue (“Commissioner”) filed an Opposition to 19 Plaintiff’s Application. (Dkt. #24). After reviewing the pleadings, the Court issues the 20 following Order. 21 I. 22 BACKGROUND This case came before the Court on Plaintiff’s complaint for review of the 23 Administrative Law Judge’s (“ALJ”) denial of Plaintiff’s claim for various disability 24 benefits under the Social Security Act. (Dkt. #1). On September 29, 2008, the Court 25 granted summary judgment in favor of Plaintiff and remanded the action for a calculation 26 of benefits. (Dkt. #21). 27 28 On December 10, 2008, Stephanie Lake, Plaintiff’s counsel, filed the instant application for attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § Dockets.Justia.com 1 2412(d)(1)(A) (“EAJA”). (Dkt. #23). Plaintiff’s counsel requests a total of $6,525.66, 2 representing $350.00 in costs and $6,525.66 in fees for 37.1 hours of attorney time. (Dkt. 3 #23, Appx. A). The Commissioner opposes Plaintiff’s EAJA request, contending that 4 Plaintiff is not entitled to EAJA attorney fees because its position was substantially 5 justified, and in the alternative, Plaintiff’s claimed attorney fees are excessive and 6 unreasonable. (Dkt. #24). In addition, the Commissioner contends that any EAJA fees 7 awarded by the Court must be paid directly to Plaintiff, rather than her attorney. (Id., pp. 8 11-13). 9 II. REQUEST FOR ATTORNEY’S FEES 10 A. Substantial Justification 11 Section 2412(d)(1)(A) of the EAJA provides that a prevailing party in any civil 12 action brought by or against the United States shall be reimbursed for fees and other 13 expenses incurred by that party “unless the court finds that the position of the United 14 States was substantially justified or that special circumstances make an award unjust.” 28 15 U.S.C. § 2412(d)(1)(A). To award attorney’s fees under the EAJA, the Court must 16 determine: (1) that the claimant is a “prevailing party”; (2) that the Commissioner has not 17 met his burden of showing that its position with respect to the issue(s) on which the Court 18 based its remand was “substantially justified” or that special circumstances make an 19 award unjust; (3) that the requested fees and costs are reasonable. See Perez-Arellano v. 20 Smith, 279 F.3d 791, 793 (9th Cir. 2002); see generally Lewis v. Barnhart, 281 F.3d 1081 21 (9th Cir. 2002). 22 “The government has the burden of proving that its position was substantially 23 justified.” Patterson v. Apfel, 99 F.Supp.2d 1212, 1213 (C.D. Cal. 2000) (citing Sampson 24 v. Chater, 103 F.3d 918, 921 (9th Cir. 1996)). “‘Substantial justification’ under the EAJA 25 means that the government’s position must have a reasonable basis in law and fact.” 26 Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (citing Pierce v. Underwood, 487 27 U.S. 552, 565 (1988)); Lewis, 281 F.3d at 1083 (“The Commissioner is ‘substantially 28 justified’ if his position met the traditional reasonableness standard – that is justified in -2- 1 substance or in the main, or to a degree that could satisfy a reasonable person.”) (internal 2 quotation marks and citations omitted). “The government’s position must be 3 ‘substantially justified’ at ‘each stage of the proceedings.’” Corbin, 149 F.3d at 1052 4 (quoting Williams v. Bowen, 966 F.2d 1259, 1261 (9th Cir. 1991)). In addition, “a 5 position can be justified even though it is not correct.” Underwood, 487 U.S. at 566 n.2. In its September 29, 2008 Order, the Court remanded this case for an award of 6 7 benefits because the ALJ (1) improperly rejected third-party statements (Dkt. #21, p.14), 8 (2) improperly rejected Plaintiff’s testimony regarding the severity of her symptoms and 9 pain (id. at pp. 16-17), and (3) failed to explain his conclusion that Plaintiff was disabled 10 under Listing 1.02A prior to June 6, 2004 (id., pp. 14-16). Plaintiff contends that the 11 Court’s decision to grant summary judgment in Plaintiff’s favor and remand the case for 12 payment of benefits, “describes the errors committed by the administrative law judge, 13 thus showing that the United State’s position in this case was not substantially justified.” 14 (Dkt. #23, p.3). Defendant, on the other hand, contends that the Commissioner was 15 substantially justified in defending on appeal the ALJ’s determinations that Plaintiff was 16 not disabled prior to June 6, 2004, for each of the reasons noted above. (Dkt. #24, pp. 4- 17 8). 18 First, the Court rejected the ALJ’s decision to discount the third-party statements 19 of Lisa Cortez because “the ALJ pointed to nothing in the record to support [the] 20 contention” that “Ms. Cortez’s statements were inconsistent with Plaintiff’s testimony 21 and the objective medical evidence.” (Dkt. #21, p.14). However, “the Commissioner 22 submits that the ALJ’s express reliance on Dr. Erickson’s opinion appeared to explain the 23 ALJ’s rejection of Ms. Cortez’s testimony.” (Dkt. #24, p. 5). The Commissioner cites to 24 Lewis v. Apfel for the proposition that the ALJ’s conclusion that Ms. Cortez’s statements 25 were inconsistent with the medical evidence is sufficient, and a more detailed explanation 26 is not required. 236 F.3d 503, 511 (9th Cir. 2002). But in Lewis, although the ALJ did 27 not specifically cite to the record, the ALJ did give specific reasons, drawn from the 28 record, to support his decision to disregard the testimony of the petitioner’s family -3- 1 members. Id. Here, on the other hand, the ALJ merely repeated Ms. Cortez’s statements 2 and then stated that they were inconsistent with the medical record. That is insufficient to 3 allow the Court to determine what record(s) the ALJ was alluding to in coming to his 4 conclusion. And even if the Court assumed that the ALJ was referring to Dr. Erickson’s 5 June 10, 2003 opinion, Dr. Erickson merely opined that Plaintiff was limited in her ability 6 to do “any work that would require her to be on her feet more than approximately five 7 minutes out of each hour. I do not feel she would be able to walk more than 8 approximately 100 feet at a time.” (AR 496, 557). That does not appear to contradict 9 Ms. Cortez’s testimony that Plaintiff could not stand for long periods and could not sit 10 “unless her feet [we]re propped up with a pillow.” (AR 236). Thus, the Court cannot 11 conclude that the Commissioner’s position with respect to the ALJ’s rejection of Ms. 12 Cortez’s testimony was substantially justified. 13 Second, the Court held that “the ALJ did not properly consider Plaintiff’s 14 testimony regarding the severity of her symptoms and pain” because “[t]he ALJ did not 15 provide clear and convincing reasons, supported by specific findings, to justify his 16 adverse credibility determination.” (Dkt. #21, p.16). However, the Commissioner argues 17 that its position was substantially justified because “the ALJ expressly relied on and 18 quoted from the June 10, 2003 opinion of treating source Dr. Erickson” in concluding that 19 Plaintiff’s “allegations that she was incapable of all work activity” and “could not walk 20 on uneven ground for the last four years and could only walk 20-25 feet without 21 stopping” were “not supported by the objective medical evidence.” (AR 25; see also Dkt. 22 #24, pp. 5-6). The Commissioner then notes that a court’s inquiry under 42 U.S.C. 23 405(g) “is whether the record, read as a whole, yields such evidence as would allow a 24 reasonable mind to accept the conclusions reached by the law judge.” Sample v. 25 Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (emphasis added by Defendant). However, 26 the Commissioner also “concedes that there have been subsequent Ninth Circuit cases to 27 the contrary . . .” (Dkt. #24, p.7). Regardless, the Court need not address those 28 statements, because despite the Commissioner’s contention to the contrary, the Court did -4- 1 consider the record as a whole in determining whether the record supported the 2 conclusions reached by the ALJ. But here, again, the ALJ did not explain how he arrived 3 at his conclusion that Plaintiff’s testimony was contradicted by the Dr. Erickson’s 4 opinion, and the Court fails to see how that opinion does in fact contradict Plaintiff’s 5 statements. See Corbin, 149 F.3d at 1053 (“[A] reviewing court should not be forced to 6 speculate as to the grounds for an adjudicator’s rejection of a claimant's allegations of 7 disabling pain.”). Dr. Erickson’s June 10, 2003 statements do not address whether 8 Plaintiff was capable of work activity, could walk on uneven ground; the only possible 9 contradiction is that Dr. Erickson opined that he did not believe Plaintiff could walk more 10 than 100 feet at a time, and Plaintiff testified that she could only walk 20-25 feet before 11 she had to rest. As the Court stated in its previous Order, this is an instance where 12 although the “lack of medical evidence supporting the degree of severity of symptoms is a 13 factor to be considered, the ALJ may not reject subjective complaints based solely on a 14 lack of objective medical evidence.” (Dkt. #21, p.17). Thus, the Court cannot conclude 15 that the Commissioner’s position with respect to the ALJ’s rejection of Plaintiff’s 16 testimony was substantially justified. Cf. Wolverton v. Heckler, 726 F.2d 580, 583 (9th 17 Cir. 1984) (awarding fees where the ALJ was not reversed for improper balancing, but 18 because there was no evidence contradicting the medical experts’ findings). 19 Finally, the Court held that “the ALJ did not make any findings regarding his 20 conclusion” that Plaintiff “did not meet the inability to ambulate effectively as stated in 21 Listing 1.02A prior to June 6, 2004.” (Dkt. #21, p.15; AR 25). The Commissioner 22 argues that “the ALJ expressly relied on and quoted from Dr. Erickson’s opinion as to 23 Plaintiff’s functional limitations,” and thus “the ALJ’s findings had a reasonable basis in 24 law and fact such that the Commissioner’s position was substantially justified.” In 25 addition, the Commissioner points to Dr. Shallenberger’s opinion that Plaintiff could 26 perform lifting and carrying requirements for light work and although limited in her 27 ability to push or pull with her legs, could stand and walk for approximately two hours in 28 a work day. (Dkt. #21, p.8; AR 276). Although the Court found that the ALJ did not -5- 1 properly address how the medical evidence supported his conclusion that Plaintiff was 2 able to ambulate effectively, and that Dr. Erickson or Dr. Shallenberger’s testimony was 3 not sufficient to ultimately support that conclusion, Dr. Shallenberger’s opinion provides 4 a reasonable basis for the Commissioner’s position with respect to the ALJ’s finding that 5 Plaintiff’s impairments did not meet or equal the requirements of the listings prior to June 6 6, 2004. Thus, with respect to the ALJ’s finding as to Listing 1.02A, the Commissioner’s 7 position was justified. See Underwood, 487 U.S. at 566 n.2; see also Albrecht v. Heckler, 8 765 F.2d 914, 916 (9th Cir. 1985) (when “the ALJ is reversed for a failure to weigh 9 conflicting medical evidence properly, an award of fees is inappropriate”). However, as 10 the Commissioner’s positions with respect to the ALJ’s decision to reject Plaintiff and 11 Ms. Cortez’s testimony, on which the Court also based its decision to remand, was not 12 substantially justified, the Court cannot conclude that the Commissioner’s defense on 13 appeal of the ALJ’s determination was substantially justified, and thus Plaintiff is entitled 14 to reasonable EAJA attorney fees. See Love v. Reilly, 924 F.2d 1492, 1497 (9th Cir. 15 1991) (“[U]nder the EAJA, the prevailing party is automatically entitled to attorney’s fees 16 . . . once the district court has made a determination that the government's position lacks 17 substantial justification.”). 18 B. Reasonableness of the Number of Hours Claimed 19 In the alternative, Defendant disputes the amount of Plaintiff’s requested 20 attorney’s fees. Specifically, Defendant contends that Plaintiff's requested fees of 21 $6,175.66, representing 37.1 hours of work, should be reduced to $4,519.39, representing 22 27.15 attorney hours, a reduction of 9.95 hours of work. (Dkt. #24, p.11). Defendant 23 offers multiple objections to Plaintiff’s counsel’s claimed attorney hours to support the 24 proposed reduction: “Plaintiff’s attorneys’ hours are unreasonable considering the routine 25 issues raised, the lack of success in most of the arguments and in the remedy sought in 26 this Court, the hours claimed for Plaintiff’s own extension of time, and the various 27 clerical hours claimed as attorney work.” (Id., p.9). Specifically, Defendant requests that 28 the claimed hours be reduced (1) by four hours due to the alleged routine nature of the -6- 1 case, (2) by three hours because Plaintiff did not succeed in all of her arguments, (3) by 2 0.9 hours for seeking extensions of time, (4) from 2.3 to 1.3 hours for communications 3 with Plaintiff after the Complaint was filed, and (5) from 1.5 to 0.75 hours for preparing 4 the instant Motion for Attorney’s Fees in the event the Court finds the claimed hours are 5 excessive. (Id., pp. 9-11). 6 “Social security cases are fact-intensive and require a careful application of the law 7 to the testimony and documentary evidence, which must be reviewed and discussed in 8 considerable detail.” Patterson, 99 F.Supp.2d at 1213. As such, “[t]he Court will not 9 second-guess counsel about the time necessary to achieve a favorable result for his 10 client.” Kling v. Sect’y of Dept. of Health & Human Servs., 790 F.Supp. 145, 152 (N.D. 11 Ohio 1992). However, if the requested fees are not shown to be reasonable, then the 12 Court may reduce the award. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“It 13 remains for the district court to determine what fee is ‘reasonable.’”); Atkins v. Apfel, 14 154 F.3d 986, 988 (9th Cir. 1998) (applying Hensley to cases involving the EAJA). Thus, 15 “[t]he district court should exclude from [the] initial fee calculation hours that were not 16 ‘reasonably expended[,] . . . [and] hours that are excessive, redundant, or otherwise 17 unnecessary.” Hensley, 461 U.S. at 434; see also Chalmers v. City of Los Angeles, 796 18 F.2d 1205, 1211 (9th Cir. 1986), reh’g denied, amended on other grounds, 808 F.2d 1373 19 (9th Cir. 1987) (“Those hours may be reduced . . . if the case was overstaffed and hours 20 are duplicated; if the hours expended are deemed excessive or otherwise unnecessary..”). 21 First, the Commissioner requests that Plaintiff’s claimed attorney hours be reduced 22 by four hours because “Plaintiff’s attorney raised only routine issues.” (Dkt. #24, p.9). 23 The Court agrees. Although the administrative record in this case was lengthy, the only 24 issue raised before the Court was narrow: whether the ALJ properly determined that 25 Plaintiff was disabled as of June 6, 2004, but not prior to that date. (Dkt. #21, p.2). In 26 addition, Plaintiff’s counsel specializes in Social Security disability litigation; that 27 specialization, although not in and of itself sufficient to grant a reduction in hours 28 claimed, see Patterson, 99 F.Supp.2d at 1213, means that her challenges to the ALJ’s -7- 1 decision concerning conflicting medical opinions, credibility, third party statements, and 2 presumptive disability under the Listings, are likely routine in her practice. Thus, having 3 reviewed the submitted itemization of attorney time, without the benefit of a Reply from 4 Plaintiff with respect to Defendant’s requested reductions, the Court concludes that 5 Defendant’s requested four hour reduction in Plaintiff’s claimed attorney hours is 6 warranted due to the routine nature of this action in light of Plaintiff’s experience in such 7 litigation.1 8 Second, the Commissioner requests that Plaintiff’s claimed attorney hours be 9 reduced by three hours because “Plaintiff’s attorney did not succeed in all her arguments . 10 . .” (Dkt. #24, p.9). The Court disagrees. Although “work on an unsuccessful claim 11 cannot be deemed to have been expended in pursuit of the ultimate result achieved[,] . . . . 12 [l]itigants in good faith may raise alternative legal grounds for a desired outcome, and the 13 court’s rejection of or failure to reach certain grounds is not a sufficient reason for 14 reducing a fee.” Hensley, 461 U.S. at 435 (emphasis added) (internal quotation marks 15 and citation omitted). Plaintiff obtained her requested relief: remand for benefits based 16 on an alleged disability onset date of June 15, 2001. Although Plaintiff did not succeed 17 on some of her arguments, she succeeded on others and ultimately obtained the relief 18 requested. This is not a situation where Plaintiff failed to prevail on claims unrelated to 19 the claims on which she succeeded or achieved such a low level of success to make the 20 hours expended an unsatisfactory basis for making a fee award. Cf. Atkins v. Apfel, 154 21 F.3d 986, 988-89 (9th Cir. 1998) (remanding to the district court to consider the 22 relationship between the amount of the fee awarded and the results obtained, and 23 24 25 26 27 28 1 The decision to reduce hours claimed is also based on the fact that some of the hours claimed appear excessive, redundant, or otherwise unnecessary, including, but not limited to, hours claimed for receiving and reviewing notice of appearances, hours claimed with respect to drafting and serving summonses, receiving and reviewing notice of service of scheduling order, receiving and reviewing electronic receipt of filing fee, receiving confirmation of service on the parties involved, et cetera. -8- 1 indicating that attorney’s fees may be reduced where the plaintiff pursued an unsuccessful 2 appeal). 3 Third, the Commissioner requests that Plaintiff’s claimed attorney hours be 4 reduced by 0.9 hours “for seeking extensions of time” because “this claimed time was not 5 reasonably spent, ran solely to Plaintiff’s attorney’s benefit, should not be billed to 6 Plaintiff, and therefore should not be billed to the government.” (Dkt. #24, p.10). The 7 Court agrees in part. Plaintiff’s requested fees for drafting a motion for extension of time 8 to serve Defendant and receiving and reviewing the Court’s Order granting said motion 9 appears unnecessary. See Hensley, 461 U.S. at 434 (reduction in hours claimed is 10 warranted where hours claimed are “excessive, redundant, or otherwise unnecessary”). 11 However, the Court cannot say the same of Plaintiff’s Motion for Extension of time to 12 respond to Defendant’s Cross-Motion for Summary Judgment, as Defendant himself 13 “acknowledges the lengthy administrative record.” (Dkt. #24, p.9). Then again, the 14 subsequent hours claimed for reviewing the Court’s Order granting that motion appear 15 unnecessary. As such, the Court will adjust Plaintiff’s requested fee award downward by 16 0.6 hours. 17 Fourth, the Commissioner notes that Plaintiff’s attorney claims 2.3 hours for 18 communications with Plaintiff after the Complaint was filed; the Commissioner requests 19 that the Court reduce that by 1.3 hours as “this was a review of the agency’s decision, 20 based on a closed administrative record, . . . and [ ] no additional evidence was offered.” 21 (Dkt. #24, p.10). The Court disagrees. The position advanced by the Commissioner 22 appears to be based on defense counsel’s own opinion as to the time necessary for 23 Plaintiff’s counsel’s communication with Plaintiff. Defendant offers no authority to 24 suggest that time billed for such communication is unreasonable. Furthermore, Plaintiff’s 25 counsel’s communications with Plaintiff all appear directly related to the litigation and 26 compensable as attorney tasks as opposed to administrative tasks. Thus, the Court will 27 not reduce Plaintiff’s attorney hours for attorney-client communications as requested by 28 the Commissioner. -9- 1 Finally, the Commissioner requests that Plaintiff’s claimed attorney hours be 2 reduced from 1.5 to 0.75 hours with respect to Plaintiff’s counsel’s work on the instant 3 EAJA attorney fee matter “to reflect the unsuccessful fee petition.” (Dkt. #24, p.10). The 4 Commissioner cites to Durett v. Cohen for the proposition that a reduction in fees claimed 5 for work on the merits should generally be accompanied by a reduction of the fees 6 requested for work on the fee petition. 790 F.2d 360, 363 (3d Cir. 1986) (“[T]he district 7 court gave no explanation for the seemingly inconsistent result of reducing the fees for 8 work on the merits but granting the entire fee claimed for work on the fee petition.”). The 9 Court agrees with that proposition. Here, as the reduction in hours claimed made by the 10 Court is relatively small, the Court concludes that only a 0.25 hour reduction is 11 warranted. However, the Court concludes that an additional 0.5 hour reduction is 12 warranted with respect to Plaintiff’s counsel’s work on the instant EAJA attorney fee 13 request because the claimed time includes time spent researching the EAJA, which the 14 Court finds excessive and unnecessary in the light of Plaintiff’s counsel’s experience in 15 filing EAJA fee applications, the brevity of the instant application, and the fact that 16 Plaintiff cites only one case. As such, the Court will adjust Plaintiff’s claimed attorney 17 hours downward by 0.75 hours. 18 In sum, the Court will reduce Plaintiff’s total claimed hours by 5.35 hours, from 19 the requested 37.1 hours to 31.75 hours. See Hardy v. Callahan, 1997 WL 470355, at *9 20 (E.D. Tex. 1997) (observing that the “typical EAJA application in social security cases 21 claims between thirty and forty hours,” which “appears to be an appropriate average for 22 relatively non-complex social security cases”'). Therefore, based on the uncontested 23 hourly fee of $166.46, the total EAJA attorney’s fee award is $5,285.11, compared to the 24 $6,175.66 requested by Plaintiff.2 25 26 27 28 2 Plaintiff is also entitled to an award of costs under the EAJA, 28 U.S.C. § 2412(a)(1). The Commissioner does not contest Plaintiff’s request for $350.00 in costs. However, as costs, unlike expenses, are administered by the U.S. Department of Justice, the Court will direct that the $350.00 awarded to Plaintiff for costs shall be paid out of the Judgement Fund. - 10 - 1 C. EAJA Award Disbursement 2 In addition to the above dispute regarding the reasonableness of Plaintiff’s 3 requested attorney’s fees, Defendant asks that the Court direct payment of any awarded 4 EAJA attorney’s fees to Plaintiff and not Plaintiff’s attorney. (Dkt. #24, pp. 11-13). 5 However, as the Court recently held in McMahon v. Astrue, “although the Court finds 6 that § 2412(d)(1)(A) of the EAJA requires that attorney’s fees must be sought by, and 7 awarded to, the plaintiff and not his or her attorney, the Court also finds that EAJA 8 conversely allows, and indeed anticipates, that such fee awards will be directly payable to 9 the plaintiff’s attorney and not the plaintiff.” 2008 WL 4183018, at *8 (D. Ariz. 2008). 10 Accordingly, 11 IT IS HEREBY ORDERED that Plaintiff's Application for Attorney’s Fees 12 Pursuant to the Equal Access to Justice Act (Dkt. #23) is GRANTED IN PART and 13 DENIED IN PART. Plaintiff is awarded attorney’s fees totaling $5,285.11, resulting 14 from 31.75 attorney hours at an hourly rate of $166.46. 15 IT IS FURTHER ORDERED that Plaintiff is awarded $350.00 in costs per 28 16 U.S.C. § 2412(a)(1), to be paid out of the Judgement Fund, as administered by the United 17 States Department of Justice. 18 IT IS FURTHER ORDERED that the attorney fee and cost award of $5,285.11 19 shall be made payable to Plaintiff’s counsel. 20 DATED this 17th day of April, 2009. 21 22 23 24 25 26 27 28 - 11 -
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