Frederick v. Astrue, No. 2:2011cv02007 - Document 23 (W.D. Wash. 2012)
Court Description: ORDER granting pltf's 18 Motion for Attorney Fees by Hon. Brian A Tsuchida.(RS)
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Frederick v. Astrue Doc. 23 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 SALLY A. FREDERICK, 8 Plaintiff, 9 Case No. C11-2007-BAT ORDER ON PLAINTIFF’S MOTION FOR EAJA FEES v. 10 MICHAEL J. ASTRUE, Commissioner of 11 Social Security, Defendant. 12 13 Sally Frederick moves for $7220.59 in attorney fees and supplemental fees, and $350 in 14 expenses and costs under the Equal Access to Justice Act (“EAJA”). Dkt. 18, 22. The 15 Commissioner opposes the motion arguing his position was substantially justified, and that the 16 fee request is unreasonable. Dkt. 20 at 3. 17 The Court may award EAJA fees if (1) the plaintiff is the prevailing party; (2) the 18 government has failed to show its positions during the case were substantially justified or that 19 special circumstances make such an award unjust; and (3) the requested attorneys’ fees are 20 reasonable. 28 U.S.C. § 2412(d)(1)(A); see e.g., Perez–Arellano v. Smith, 279 F.3d 791, 792 21 (9th Cir. 2002). 22 Ms. Frederick is a prevailing party as the Court reversed and remanded the 23 Commissioner’s final decision, under sentence four, for further administrative proceedings. See ORDER ON PLAINTIFF’S MOTION FOR EAJA FEES - 1 Dockets.Justia.com 1 Dkt. 15; Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995) (an applicant for benefits is a 2 prevailing party upon procuring a sentence-four remand for further administrative proceedings). 3 The Commissioner does not dispute this but argues EAJA fees should be denied because the 4 government’s position was substantially justified. 5 To meet the “substantially justified” standard, the government must advance a position 6 justified to a degree that could satisfy a reasonable person. See Pierce v. Underwood, 487 U.S. 7 552, 565, (1988); accord Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008). In other words, the 8 government’s position must have had a “reasonable basis in both law and fact.” Pierce, 487 U.S. 9 at 565; accord Shafer v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). By this measure, the 10 government was substantially justified in most of its positions as the Court rejected most of Ms. 11 Frederick’s claims. Ms. Frederick’s opening brief 1 raised the following claims: 12 (1) Whether the ALJ properly found that Ms. Frederick’s anxiety disorder was not a severe impairment? 13 (2) Whether the ALJ provided a sufficient basis for rejecting the opinion of examining doctor Wayne Dees, Psy.D.? 14 (3) Whether the ALJ provided a sufficient basis for rejecting the opinions of reviewing doctors Jerry Gardner, Ph.D., and Richard Borton, Ph.D.? 15 16 (4) Whether the ALJ provided a sufficient basis for rejecting the opinion of mental health clinician Anne Imbs Olsen, MSW? 17 (5) Whether the ALJ provided a sufficient basis for rejecting the opinion of Angela Han, ARNP? 18 19 (6) Whether the ALJ provided a sufficient basis for rejecting the opinion of mental health counselor Lauren Portman? 20 (7) Whether the ALJ provided a sufficient basis for rejecting the testimony of lay witnesses? 21 22 (8) Whether the ALJ properly assessed Ms. Frederick’s credibility? 23 1 Dkt. 12 at 2. ORDER ON PLAINTIFF’S MOTION FOR EAJA FEES - 2 1 The Court found the ALJ did not err as to claims 1, 2, 3, and 6. The government was thus 2 substantially justified in its position as to these claims. The Court found the ALJ erred as to 3 claims 4 and 5. Dkt. 15. These claims involved ARNP Han’s and mental health clinician 4 Olson’s opinions that Ms. Frederick had marked impairments in her ability to deal with stress 5 and concentrate and that she had memory problems. Dkt. 15 at 12. The Court found the ALJ 6 erred in failing to mention or discuss these opinions and that the failure was not harmless. In 7 determining a claimant’s RFC, an ALJ must assess all the relevant evidence, including medical 8 reports and witnesses’s descriptions of limitation, to determine what capacity the claimant has 9 for work. See 20 C.F.R. § 416.945(a). The ALJ in this case failed consider Ms. Han’s and Ms. 10 Olson’s opinions without explanation. As there is no factual or legal basis for the ALJ’s failure 11 or the government’s defense of the ALJ’s actions, the Court concludes the government was not 12 substantially justified as to claims 4 and 5. 13 As to claim 7, the ALJ found the lay testimony was inconsistent with the medical 14 evidence. The Court did not find the ALJ erred but concluded whether the ALJ’s finding is 15 supported by substantial evidence would depend on the findings the ALJ made on remand. Id. at 16 13. And finally as to claim 8, the Court found the ALJ gave one valid and one invalid reason to 17 discount Ms. Frederick’s credibility. The Court found it could not say the invalid reason was 18 harmless and remanded the issue for the ALJ to reassess when the ALJ reevaluated ARNP Han’s 19 and mental health counselor Portman’s opinions. Id. at 15. 20 In a situation such as this where the Court rejects some of the arguments of the prevailing 21 party, and finds the government’s position as to the rejected arguments was substantially 22 justified, the Court may adjust the fee award to ensure the award is reasonable. Hensley v. 23 Eckerhart, 461 U.S. 424 (1983). In this circuit, courts apply the principles set forth in Hensley v. ORDER ON PLAINTIFF’S MOTION FOR EAJA FEES - 3 1 Eckerhart, to determine what constitutes a reasonable fee award under the EAJA. See Costa v. 2 Comm’r of Soc. Sec., 690 F3d 1132, 1135 (9th Cir. 2012). After calculating the hours reasonably 3 expended multiplied by an appropriate hourly rate, the Court may adjust the fee award to ensure 4 the award is reasonable. Hensley, 461 U.S. at 434. However, the most important factor in 5 making this determination is the degree of success obtained by counsel. Id. “This factor is 6 particularly crucial where a plaintiff is deemed ‘prevailing’ even though he succeeded on only 7 some of his claims for relief.” Id. When the plaintiff has only partially succeeded, the Court 8 must first determine whether the successful claims were related to or separate from the claims on 9 which plaintiff did not prevail. Id. Then the Court must determine whether “plaintiff achieve[d] 10 a level of success that makes the hours reasonably expended a satisfactory basis for making a fee 11 award.” Id. 12 The degree of success Ms. Frederick achieved does not justify the amount of EAJA fees 13 requested. First, the Court rejected claims 1, 2, 3, and 6 in which Ms. Frederick argued the ALJ 14 erred at step two and in assessing the medical evidence. These arguments were separate from 15 Ms. Frederick’s other arguments that the ALJ erred in failing to consider Ms. Han’s and Ms. 16 Olson’s opinions without explanation (claims 4 and 5), in that claims 1, 2, 3, and 6 could be 17 raised whether claims 4 and 5 were raised. The two sets of claims are somewhat related in that 18 the Court is required to examine the entire record. Thomas v. Barnhart, 278 F3d 947 (9th Cir. 19 2002). But the Court’s duty to examine the entire record is a poor measure to determine whether 20 claims are separate or not in making an EAJA fee finding. If the duty to examine were a basis, 21 there would be no separation between successful and unsuccessful claims and the Court would 22 always have to award full EAJA fees regardless of the degree of success claimant achieved. 23 Second, as relief Ms. Frederick’s primary request was that the Court remand the matter ORDER ON PLAINTIFF’S MOTION FOR EAJA FEES - 4 1 for an award of benefits. Dkt. 12 at 22. She did not achieve that. She did achieve her secondary 2 request that the matter be remanded for further proceedings. But given the Court’s Order, the 3 scope of remand is limited. The Court rejected Ms. Frederick’s step-two argument and thus the 4 ALJ’s findings as to her severe impairments stand. The Court also rejected her arguments about 5 the opinions of Drs. Dees, Gardner, and Bolton, and the opinion of Ms. Portman, MSW. Thus 6 what remains on remand is a reevaluation of the opinions of Ms. Han and Ms. Olson and any 7 potential impact the reevaluation has on the testimony of the lay witnesses and Ms. Frederick. 8 Accordingly, the Court finds Ms. Frederick’s EAJA fee request should be tempered by 9 her partial success. The Commissioner suggests Ms. Frederick’s limited success justifies 10 reducing the requested $6,761.26 in fees to $4,174.35. Dkt. 20 at 8-9. The Court finds this 40% 11 adjustment is appropriate in light of the Court’s rejection of at least 50% of Ms. Frederick’s 12 claims and the limited scope of remand. Additionally, this reduction is appropriate because some 13 of Ms. Frederick’s arguments were not supported by the record, or were conclusory and 14 insufficient. A fee request for time spent on unsupported or conclusory arguments is not 15 reasonable. Because Ms. Frederick was partially successful in defending against the government’s 16 17 challenge to her request, she is also entitled to supplemental fees commensurate with the degree 18 of success she achieved. See e.g., Wagner v. Shinseki, 640 F3d 1255, 1261 (Fed. Cir. 2011). 19 Consistent with the discussion above the Court reduces Ms. Frederick request for supplemental 20 fees of $359.33 to $215.60. For the foregoing reasons, the Court grants the motion (Dkt. 18) for EAJA fees and costs, 21 22 /// 23 /// ORDER ON PLAINTIFF’S MOTION FOR EAJA FEES - 5 1 in part, and ORDERS: 2 (1) EAJA fees: 3 (2) Supplemental request for fees: 4 (3) Expenses and costs: TOTAL $4,174.35 $215.60 $350.00 $4739.95 5 If the U.S. Department of the Treasury determines Ms. Frederick’s EAJA fees are not 6 subject to any offset allowed under the Treasury offset program as discussed in Astrue v. Ratliff, 7 552 U.S. 1193 (2010), payment of this award shall be made to Ms. Frederick’s attorney, 8 Schroeter, Goldmark & Bender. 9 DATED this 10th day of December, 2012. 10 A 11 BRIAN A. TSUCHIDA United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 ORDER ON PLAINTIFF’S MOTION FOR EAJA FEES - 6
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