Nelson v. Commissioner of Social Security Administration, No. 4:2019cv00250 - Document 40 (D. Ariz. 2020)
Court Description: ORDER granting 29 Motion for Attorney Fees. The plaintiffis awarded attorney fees in the amount of $11,247.71. Signed by Magistrate Judge Leslie A Bowman on 8/10/2020. (See attached Order for complete details) (DLC)
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Nelson v. Commissioner of Social Security Administration 1 Doc. 40 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 Jaymie Lyn Nelson, 11 Plaintiff, 12 vs. 13 Commissioner Administration, of 14 Defendant. 15 Social ) ) ) ) ) ) Security) ) ) ) ) ) No. CV 19-0250-TUC-LAB ORDER 16 17 Pending before the court is the plaintiff’s motion for attorney fees pursuant to the Equal 18 Access to Justice Act (EAJA), filed on May 20, 2020. (Doc. 29) The Commissioner filed a 19 response on June 15, 2020. (Doc. 33) The plaintiff, Nelson, filed a reply on July 27, 2020. 20 (Doc. 39) 21 The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) for review of the final 22 decision of the Commissioner for Social Security denying her claim for disability insurance 23 benefits. 24 Commissioner’s final decision and remanded the case for payment of benefits. (Doc. 27) The 25 plaintiff moves for attorney fees in the amount of $11,247.71 pursuant to the EAJA, 28 U.S.C. 26 § 2412. (Doc. 29); (Doc. 39, p. 21) The defendant filed a response arguing the motion for 27 attorney fees should be denied because the government’s position was substantially justified and (Doc. 1) In an order issued on February 21, 2020, this court reversed the 28 Dockets.Justia.com 1 the fees requested are not reasonable. (Doc. 33) Nelson filed a reply on July 27, 2020. (Doc. 2 39) 3 4 Discussion 5 Pursuant to the Equal Access to Justice Act (EAJA): 6 [A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . 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. 7 8 9 28 U.S.C. § 2412(d)(1)(A) (emphasis added). The phrase “fees and other expenses” includes 10 reasonable attorney fees. 28 U.S.C. § 2412(d)(2)(A). 11 12 Substantially Justified 13 “Substantial justification under the EAJA means that the government’s position must 14 have a reasonable basis in law and fact.” Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). 15 “The government’s position must be substantially justified at each stage of the proceedings.” 16 Id. “It is the government’s burden to show that its position was substantially justified.” Tobeler 17 v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). 18 In this case, the court reversed the decision of the social security administrative law 19 judge (ALJ) because “[t]he ALJ did not provide specific, clear, and convincing reasons for 20 discounting Nelson’s subjective symptom testimony.” (Doc. 27, p. 1) In her decision, the ALJ 21 stated that she discounted Nelson’s subjective symptom testimony because clinical findings did 22 not support the level of pain that she alleged. (Doc. 27, p. 7) The court found that this approach 23 violated the case law in the Ninth Circuit. (Doc. 27, p. 8) (citing Lingenfelter v. Astrue, 504 24 F.3d 1028, 1035-36 (9th Cir. 2007)) The ALJ also concluded that Nelson’s subjective symptom 25 testimony was not supported by the medical record. (Doc. 27, p. 9) The court rejected the 26 ALJ’s argument finding, among other things, that it did not account for the episodic nature of 27 28 -2- 1 her symptoms, migraine headaches. (Doc. 27, p. 11) (citing Garrison v. Colvin, 759 F.3d 995, 2 1017 (9th Cir. 2014)) 3 The Ninth Circuit considers a procedural error of this type to be a “basic and 4 fundamental” error. Shafer, 518 F.3d at 1072-72 (discussing the ALJ’s failure to provide “clear 5 and convincing” reasons for discrediting the claimant’s subjective complaints). Absent special 6 circumstances, “the defense of basic and fundamental errors . . . is difficult to justify.” Corbin 7 v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998). 8 This court finds that “[t]he ALJ did not apply the proper legal standards and the 9 Commissioner was not substantially justified in defending the ALJ’s errors.” Solomon v. 10 Comm’r of Soc. Sec., 2019 WL 1599419, at *4 (E.D. Cal. 2019). “Therefore, the government’s 11 position in this matter was not substantially justified.” Id.; see, e.g., Shafer v. Astrue, 518 F.3d 12 1067, 1071 (9th Cir. 2008); Solomon v. Comm’r of Soc. Sec., 2019 WL 1599419, at *3 (E.D. Cal. 13 2019) (Where the ALJ’s “failure to provide legally adequate reasons for rejecting the testimony 14 of the claimant and the third-par[t]y witnesses was contrary to controlling law in this circuit,” 15 the Government’s position was not “substantially justified.”); see also Campbell v. Astrue, 736 16 F.3d 867, 868 (9th Cir. 2013) (“It will be only a decidedly unusual case in which there is 17 substantial justification under the EAJA even though the agency’s decision was reversed as 18 lacking in reasonable, substantial and probative evidence in the record.”) (punctuation 19 modified). 20 21 Reasonable 22 “A district court’s award of attorney fees must be reasonable.” Sorenson v. Mink, 239 23 F.3d 1140, 1145 (9th Cir. 2001). “The most useful starting point for determining the amount of 24 a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a 25 reasonable hourly rate.” Id. 26 27 28 -3- 1 In this case, counsel asserts that he expended a total of 54.8 hours1 and requests an award 2 of $11,247.71. (Doc. 39, pp. 1, 20); (Doc. 39, p. 21) Counsel explains that he has obtained 3 EAJA fees in this district at least 17 times over the past few years and has obtained awards 4 usually between $10,000 and $12,000 but occasionally as high as $15,000. (Doc. 30, p. 8, n. 5 4) Counsel’s requested award in this case seems typical of the fees usually awarded to him in 6 this district. Id. At first blush, the court finds counsel’s fee request to be reasonable considering 7 the number of hours spent and the difficulty of this particular case, which was about average. 8 See, e.g., (Doc. 25), Desch v. Commissioner, CV 19-4419-PHX-DMF (finding award of 9 $12,109.75 under the EAJA to be reasonable). 10 The Commissioner argues specifically that the fees requested by the claimant are not 11 reasonable “due to, among other things, duplicative work on the complaint and opening brief, 12 the inclusion of copy-and-paste arguments that Plaintiff’s counsel has used repeatedly in prior 13 pleadings, counsel’s prohibited use of block billing entries, and inclusion of unreasonable 14 arguments in his merits brief.” (Doc. 33, p. 2) The court considers the Commissioner’s 15 arguments in turn. 16 First, the Commissioner argues that counsel “inflates his hours by submitting lengthy 17 briefs containing sections that have been copied and pasted from pleadings in other previously- 18 filed Social Security cases, as well as lengthy complaints that are essentially slightly shorter 19 versions of his merits briefs.” (Doc. 33, p. 12) The Commissioner supports his argument by 20 showing the court how much language in Nelson’s opening brief was taken from other 21 previously-filed briefs. The Commissioner is quick to clarify that he does not object to 22 counsel’s practice of recycling arguments. (Doc. 33, p. 13) He objects, however, to counsel 23 “charging the government the amount of time it might take to write an entire brief from scratch 24 . . . .” (Doc. 33, p. 13) The Commissioner, however, presents nothing to support his accusation 25 that counsel has inflated the number of hours he says he spent writing his brief by including 26 hours he previously spent on another case. 27 28 1 This total includes time spent litigating the pending motion. -4- 1 The Commissioner further argues that the amount of time counsel spent on the Complaint 2 is unreasonable. (Doc. 33, p. 13) In this case, counsel reports spending approximately 12 hours 3 reviewing the administrative record, performing medical research, and preparing the 20-page 4 Complaint. (Doc. 33, pp. 13-14) The Commissioner argues that this amount of time is 5 excessive because all that is required is a simple notice pleading. (Doc. 33, p. 14) 6 The court agrees that the complaint in this case is longer and more detailed than most 7 Social Security complaints this court has seen. Apparently, counsel decided to spend time early 8 in the case examining the record and identifying issues. While unorthodox, this practice is not 9 necessarily wasteful because time spent at the complaint stage identifying medical issues will 10 be useful later when the opening brief is prepared. 11 The Commissioner asserts to the contrary that counsel’s time spent at the Complaint 12 stage did not shorten the amount of time needed to brief the merits because counsel “billed a 13 whopping 29.5 hours at the merits state.” (Doc. 33, p. 15) The Commissioner seems to be 14 saying that the opening brief would have taken 29.5 hours to complete regardless of how much 15 time counsel spent on the Complaint. He does not, however, provide any evidence to support 16 his opinion. 17 The Commissioner observes that a different attorney, Robin Larkin, wrote the opening 18 brief, which was then reviewed by Nelson’s primary counsel. (Doc. 33, pp. 16-18) The 19 Commissioner maintains that this process resulted in unnecessary duplication of efforts. 20 Specifically he argues that primary counsel should not have spent 10 hours reviewing a brief 21 that took 18.5 hours to draft in the first place. Id. The Commissioner asserts that counsel 22 should have taken no more than 4 hours to review it. (Doc. 33, p. 18) 23 The court agrees that using two attorneys instead of one increases the number of hours 24 spent performing a particular task such as writing the opening brief. This practice should, 25 however, increase the quality of the final product in accordance with that old adage, “two heads 26 are better than one.” And hopefully, it will also increase the chances of success. On the other 27 hand, if the court should find in favor of the ALJ, then using two attorneys, instead of one, 28 increases the number of uncompensated attorney hours. It is a risk that counsel apparently -5- 1 found to be justified in this particular instance. As he was successful, the court is disinclined 2 to second-guess him. See also Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 3 2008) (“By and large, the court should defer to the winning lawyer’s professional judgment as 4 to how much time he was required to spend on the case; after all, he won, and might not have, 5 had he been more of a slacker.”). 6 The Commissioner also objects to counsel’s use of “block billing.” (Doc. 33) Block 7 billing is a practice in which the practitioner reports a single block of time and lists a number 8 of tasks associated with that time. Block billing is disfavored “because block billing makes it 9 more difficult to determine how much time was spent on particular activities.” Welch v. Metro. 10 Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007). The Commissioner asserts that this court should 11 reduce counsel’s total fee award by 10 percent because counsel’s use of block billing “almost 12 certainly inflates his claimed hours.” (Doc. 33, p. 18) The Commissioner fails to explain, 13 however, why he believes that counsel’s use of block billing would inflate his claimed hours. 14 In fact, Nelson’s counsel asserts that he “routinely round[s] down the time actually expended 15 to the nearest half hour for long periods of work.” (Doc. 39, p. 4) 16 Likewise, the Commissioner fails to provide any evidence to show that counsel’s claimed 17 hours are inflated by 10 percent, rather than say 5 percent or 15 percent. Counsel has itemized 18 the time spent on the case and has provided an affidavit attesting that he believes that the time 19 spent was “reasonable and necessary under the circumstances.” (Doc. 30-2); (Doc. 30-3) In 20 the absence of any evidence to the contrary, the court will assume that counsel’s figures are 21 correct, that he has not perjured himself, and that he has not violated Ethical Rule 3.3(a). 22 Ariz.Sup.Ct.R. 42, Rules of Prof.Conduct (“A lawyer shall not knowingly . . . make a false 23 statement of fact or law to a tribunal. . . .”) 24 The Commissioner notes that in the Ninth Circuit, “district courts may impose a 10 25 percent across-the-board reduc[tion] based on its exercise of discretion without any specific 26 explanation.” (Doc. 33, p. 19) (citing Costa v. Comm’r of SSA, 690 F.3d 1132, 1136 (9th Cir. 27 2012)). But while it may be true that this court could impose a 10-percent reduction without 28 -6- 1 an explanation, it does not follow that this court should impose a 10-percent reduction without 2 a reason. And those advanced by the Commissioner are not sufficiently compelling. 3 The Commissioner further argues that this court should reduce counsel’s fee award by 4 2 hours because he reviewed briefs that he previously drafted and edited. (Doc. 33, p. 19) 5 (citing, among other things, Doc. 30-2, p. 2, 5/2/19 (“drafted and edited Complaint”), 5/3/19 6 (“reviewed [and] filed Complaint”)) The court is unclear about how it should interpret this 7 argument. 8 In the film Amadeus, there is a notable scene where Antonio Salieri, Mozart’s nemesis, 9 peruses a handful of Mozart’s manuscripts and finds to his chagrin that they contain absolutely 10 no evidence of revision or correction. (Orion pictures, 1984) It was as if Mozart had the ability 11 to imagine music fully formed in his mind and simply recorded the notes as though he were 12 taking dictation from “the very voice of God.” https://www.imdb.com/title/ tt0086879/ 13 characters/ nm0000719. Perhaps the Commissioner believes that Nelson’s counsel has the same 14 ability. If so, then revision would be redundant. 15 The court finds it more likely, however, that Nelson’s counsel is not quite in Mozart’s 16 league, and time spent reviewing a pleading with an eye toward making one’s arguments as 17 clear and persuasive as possible is time well spent.2 Of course, one could spend too much time 18 revising a pleading without obtaining a commensurate increase in quality, but the record does 19 not indicate that the time counsel spent on review was unusual. 20 The Commissioner further argues that fees should not be allowed for counsel’s 21 communications with Jeremy Pekas or James Mitchell. The Commissioner was unable to 22 identify Pekas or the subject of the communications that counsel had with Mitchell. The 23 Commissioner notes that attorneys are not permitted to bill for “purely clerical or secretarial 24 tasks.” (Doc. 33, p. 20) Nelson’s counsel explains that Pekas is the attorney who represented 25 Nelson at the administrative hearing and before the Appeals Council. (Doc. 16-3, pp. 14, 50) 26 27 2 28 As counsel wryly suggests, the Commissioner’s response brief could have benefitted from some revision too. (Doc. 39, p. 18) -7- 1 The court may presume that he was still an active participant in the litigation. Counsel’s time 2 sheet indicates that Mitchell works in the office of the Federal Court Appeals Coordinator. 3 (Doc. 30-2, 4/29/19) The subjects of those communications are redacted on counsel’s time 4 sheet presumably because they are privileged. The Commissioner provides no evidence, 5 however, that the time billed involves “clerical or secretarial tasks.” 6 The Commissioner further argues that counsel’s fee award should be reduced because 7 counsel’s argument regarding the State agency physicians was frivolous and fees may be 8 reduced where “special circumstances make an award unjust.” (Doc. 33, p. 20) The court 9 disagrees with the Commissioner’s characterization of counsel’s argument. 10 In his opening brief, counsel argued, among other things, that the opinions of the 11 nonexamining physicians should not, by themselves, constitute substantial evidence. (Doc. 20, 12 pp. 21-23) They ordinarily see only a fraction of the medical record that is before the ALJ; their 13 report does not call for specific findings about a condition such as migraine headaches; and as 14 their description suggests, they do not examine the claimant. Id. The Commissioner argues that 15 counsel’s argument is frivolous because he stated at the beginning of his argument that, “As a 16 matter of law, the opinion of a nonexamining physician may not itself serve as substantial 17 evidence to support a finding a claimant is not disabled,” citing, among other things, Buck v. 18 Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017). (Doc. 33, p. 21); (Doc. 20, p. 21) This, he 19 argues, is a misstatement of the law which properly reads: “The opinion of a nonexamining 20 physician cannot by itself constitute substantial evidence that justifies the rejection of the 21 opinion [of] an examining physician. . . .” (Doc. 33, p. 21), see Buck v. Berryhill, 869 F.3d 22 1040, 1050 (9th Cir. 2017). 23 The court agrees with the Commissioner that counsel’s statement is not entirely 24 supported by the Buck decision. Nevertheless, the court believes that counsel’s argument as a 25 whole is “a good faith argument for the extension, modification, or reversal of existing law” and 26 therefore his argument is not frivolous. See Golden Eagle Distrib. Corp. v. Burroughs Corp., 27 801 F.2d 1531, 1539 (9th Cir. 1986). 28 -8- 1 Finally, the Commissioner argues that the court should award no fees for counsel’s 2 “moderate mental health limitations” argument because it “was entirely copied and pasted from 3 previous briefs and was therefore unreasonable.” (Doc. 33, p. 22) The Commissioner argues 4 that because the argument occupied approximately 8 percent of his merits briefs by length, this 5 court should deduct 8 percent of his 41.5 billed hours or 3.32 hours. (Doc. 33, p. 22, n. 16) The 6 Commissioner’s argument, however, only makes sense if counsel actually spent 8 percent of his 7 time creating this argument, and the Commissioner explicitly states that it was “entirely copied 8 and pasted from previous briefs.” (Doc. 33, p. 22) The court therefore must conclude that this 9 argument took much less time than 3.32 hours to create. The Commissioner fails to provide any 10 further guidance as to how much time this pasting might have taken. And as the Commissioner 11 stated previously that he does not object to recycling arguments in general, it is unclear what 12 the Commissioner finds objectionable here. See (Doc. 33, p. 13) 13 14 IT IS ORDERED that the plaintiff’s motion for attorney fees pursuant to the Equal 15 Access to Justice Act (EAJA), filed on May 20, 2020, is GRANTED. (Doc. 29) The plaintiff 16 is awarded attorney fees in the amount of $11,247.71. (Doc. 39, pp. 1, 20); (Doc. 39, p. 21) 17 The Commissioner’s response brief exceeds the page limit established by LRCiv 18 7.2(e)(1). If the Commissioner continues to file briefs outside the permissible limit without 19 seeking leave from the court, those briefs may be stricken without further notice. If the 20 Commissioner erroneously believed that LRCiv 16.1(d) applied here, he is now instructed 21 otherwise. 22 23 DATED this 10th day of August, 2020. 24 25 26 27 28 -9-
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