United States District Court, D. Arizona
Carl C. Zawatski, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security Administration, Defendant.
CHARLES R. PYLE United States Magistrate Judge.
September 27, 2013, the Court filed an Order remanding this
case for further proceedings to consider whether Plaintiff is
disabled under the Social Security Act. (Doc. 29, Order).
Judgment was entered accordingly. (Doc. 30). Plaintiff
through counsel has filed a Motion for Award of
Attorney's Fees Pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d). (Doc.
31). Defendant has filed a Response to Plaintiff's
Application for Attorney's Fees Under the Equal Access to
Justice Act. (Doc. 32, Resp.). Plaintiff has filed a Response
to Defendant's Objection to Requested EAJA Fees (docketed
as a Reply) (Doc. 33) that includes as attachments an Amended
Motion for Award of Attorney's Fees Pursuant to the EAJA
(Doc. 33-1) and counsel's Affidavit. (Doc. 33-2). This
case is before the Court based on the parties' consent to
Magistrate Judge jurisdiction. (Doc. 15). The Court considers
as Plaintiff's moving paper regarding the request for
attorney's fees the Motion filed at document 31 supported
by the briefing filed at document 33.
original Motion, Plaintiff sought an attorney's fee award
of $10, 006.54 based on 54.35 hours of service performed
during 2011-2013. (Doc. 31). Defendant has not disputed that
Plaintiff was the prevailing party and does not object to the
cost of living adjusted hourly rates on which Plaintiff's
request is based. Defendant objects that its position in the
case was substantially justified, that Plaintiff's
request for compensation is excessive, and that a fee award
of $5, 969.60 for 32 hours of attorney work on the case is
reasonable. In the Amended Motion for Attorney's Fees,
which the Court construes as additional briefing, Plaintiff
requested a fee amount of $10, 623.69 for 57.55 hours of work
performed on the case. (Doc. 33-1 at 1). It appears, however,
that in light of Defendant's objections, Plaintiff has
requested for all work performed on the case a fee award of
$9, 470.33 based on 50.78 hours of attorney time as shown on
counsel's amended time records. (Doc. 33-1 at 8-13).
Defendant's Position Was Substantially Justified
EAJA provides that a prevailing party in a civil suit against
the federal government shall be awarded attorney's fees
unless the court finds that the government's position was
substantially justified or that special circumstances make
the award unjust. 28 U.S.C. § 2412(d)(1)(A). To meet the
“substantially justified” standard under the
EAJA, “the government must advance a position that is
‘justified in substance or in the main - that is,
justified to a degree that could satisfy a reasonable
person.'” Le v. Astrue, 529 F.3d 1200,
1201 (9th Cir. 2008) (quoting United States v.
Marolf, 277 F.3d 1156, 1161 (9th Cir. 2002)).
“[T]he government's position must have a reasonable
basis in law and fact” and “be substantially
justified at each stage of the proceedings.” Shafer
v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008). The
court's inquiry is limited to the issues that led to
remand. Hardisty v. Astrue, 592 F.3d 1072, 1078 (9th
Cir. 2010). The Commissioner has the burden to show that its
position was substantially justified or that special
circumstances exist to make an award unjust. Gutierrez v.
Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).
contends its position was substantially justified, that is,
reasonable in law and fact, even though the Court found that
remand was necessary. Defendant specifically argues that its
position was substantially justified regarding the
Administrative Law Judge's (“ALJ”) evaluation
of Dr. Whyte's opinion, to which the ALJ gave little
weight, and of Dr. Haburchak's opinion, which the ALJ
determined was not relevant because Dr. Haburchak did not
render an opinion regarding Plaintiff's condition before
his insured status expired. The Commissioner also contends
that even though the ALJ had an obligation to inquire about
the Department of Veterans Affairs' (“VA”)
rating decision, it was reasonable to take the position that
the record evidence was sufficient to infer the VA rating
decision and any error was harmless and did not prejudice
case, the ALJ found that Plaintiff satisfied the listed
disability impairments for affective disorders and substance
addiction disorders but he was not entitled to benefits
because alcoholism was a contributing factor material to the
disability determination. (Doc. 29, Order at 2). Plaintiff
contended on appeal that the ALJ erred by failing to consider
evidence after the date last insured, by failing to give
controlling weight to Plaintiff's treating providers'
opinions before and after that date, and by failing to give
great weight to the VA's finding of 100% disability for
Plaintiff's post-traumatic stress disorder
(“PTSD”) and major depressive disorder.
record showed that Plaintiff met the insured status through
September 30, 2004. (Id. at 4). The ALJ gave the
opinion of Eric Whyte, M.D., Plaintiff's treating
physician, “minimal weight” because Dr. Whyte had
treated Plaintiff for only one month during the
“relevant time” and the rest of Plaintiff's
treatment and Dr. Whyte's opinion were from an irrelevant
period. (Id. at 5). Plaintiff contended that the ALJ
had erroneously failed to consider records dated after
September 30, 2004, including the opinions of Dr. Whyte and
Lawrence Haburchak, Psy.D., Plaintiff's treating
psychologist. (Id. at 4). Defendant argued that the
ALJ had properly rejected opinions rendered after September
30, 2004. (Id.). The Court found in part that the
ALJ had “overlooked” Dr. Whyte's specific
opinion “that Plaintiff's depressive disorder is
independent of his alcohol dependence, ” that
Plaintiff's “alcohol abuse had been a symptom of
his depression, rather than a cause of it, ” and Dr.
Whyte's review of Plaintiff's medical records prior
to September 2004 suggested that Plaintiff suffered from
disabling depression “long before” September
2004. (Id. at 5-6). The Court noted that in 2009,
Dr. Whyte stated that he had treated Plaintiff since
September 2004 and that Plaintiff “carries diagnoses of
Major Depressive Disorder, Recurrent (for which he has been
rated 100% by the Veterans Administration [“VA”]
...” PTSD and Alcohol Dependence. (Id. at
4-5). The Court rejected Defendant's argument that Dr.
Whyte's opinion was not supported by the record because
“the ALJ did not state such a reason” and because
the ALJ omitted relevant medical information in setting out
the reasons for the ALJ's interpretation of the medical
evidence. (Id. at 6-10).
also argued that the ALJ considered a letter written by Dr.
Haburchak; however, the Court found that the ALJ mentioned
Dr. Haburchak as Plaintiff's treating psychologist but
did not refer to the letter. (Id. at 5). Dr.
Haburchak had written in September 2008 that he had been
treating Plaintiff since December 2003 and that Plaintiff had
endured chronic symptoms of “Major Depression and
PTSD.” (Id.). As the Court pointed out, the
Ninth Circuit has held that “medical reports are
inevitably rendered retrospectively and should not be
disregarded solely on that basis.” (Doc. 29, Order at
6, citing Smith v. Bowen, 849 F.2d 1222, 1225 (9th
Cir. 1988) and other cases). The Court found, “It is
well settled that the opinions of treating physicians are
entitled to greater weight than the opinions of examining or
non-examining physicians.” (Doc. 29, Order at 5 citing
Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir.
1995) and other cases). The Court explained, “Moreover
the ALJ relie[d] upon no medical opinion of record suggesting
that Plaintiff's depressive disorder is not independent
of his alcoholism or that Plaintiff did not suffer from such
disabling depression long before September 2004. Nor do the
records cited by the ALJ necessarily support the ALJ's
contrary conclusion when those records are considered in
context or considered on the record as a whole.” (Doc.
29, Order at 9-10).
addition, the Court's review of the record showed that a
copy of the VA disability rating was not included. (Doc. 29,
Order at 10). Based on relevant legal principles, the ALJ
must give great weight to a VA determination of disability
but is allowed to give it less weight based on persuasive,
specific and valid reasons for doing so that are supported by
the record. (Id., citing Turner v.
Commissioner, 613 F.3d 1217, 1225 (9th Cir. 2010),
Valentine v. Commissioner of Social Security, 574
F.3d 685, 695 (9th Cir. 2009)). Although the ALJ acknowledged
that the VA decision existed, the ALJ never adopted or
rejected the VA's decision and did not state the weight
attributed to it. (Doc. 29, Order at 11-12). The Court
explained, “Although the ALJ was aware of a VA
disability decision in favor of Plaintiff, there is no
indication in the record that he inquired as to the basis for
that decision, was aware of the precise time period addressed
by that decision, or any specific rating assigned to
Plaintiff during the relevant time period. The ALJ's
failure to make further inquiry into this matter was
erroneous.” (Id. at 12). The Court found that
the ALJ's statements concerning the VA disability rating
were not sufficient to permit adequate review. (Id.
at 8, 10-12). Further, “when the record suggests a
likelihood that there is a VA disability rating, and does not
show what it is, the ALJ has a duty to inquire.” (Doc.
29, Order at 12, citing McLeod v. Astrue, 640 F.3d
881, 886 (9th Cir. 2011)). The ALJ's failure to develop
the record on the issue was “reasonably likely to have
been prejudicial.” (Doc. 29, Order at 12).
of the ALJ's several fundamental errors in evaluating the
record evidence, Defendant's position was not
of the Attorney's Fees Request
support of the request for attorney's fees,
Plaintiff's counsel contends that this was one of her
first social security federal court cases and thus she took
great care in the research and presentation of the case, that
this was an “orphan case” that other firms do not
usually consider and counsel was the “new
attorney” at the district court level, and that counsel
had to familiarize herself with over 600 pages of record
evidence. Plaintiff through counsel notes that
Plaintiff's opening brief was twenty-five pages inclusive
of a non-redundant statement of the facts. (Doc. 33-1).
Plaintiff contends that the issues in this case “were
multiple and complex.” (Doc. 33 at 11).
argues that 32 hours of attorney work is reasonable in this
case, noting that Plaintiff's counsel is an experienced
federal court practitioner, the transcript was not
excessively long, and the issues were routine if not mundane.
(Doc. 32 at 6). Defendant mentions that Plaintiff's
counsel did not file the Complaint in this case.
(Id.). Defendant objects to counsel's time of 78
minutes to review the scheduling order, calendar events, and
check whether an answer had been filed, claiming an hour
would be reasonable; to counsel's time of eight hours to
pull and collect case citations; to counsel's hours of
time spent in preparing the five drafts of ...