United States District Court, D. Arizona
CHARLES R. PYLE United States Magistrate Judge.
March 31, 2014, the Court filed an Order remanding this case
for further proceedings to consider whether Plaintiff is
disabled under the Social Security Act. (Doc. 32, Order).
Judgment was entered accordingly. (Doc. 33). 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.
34). Defendant has filed an Opposition to Plaintiff's
Application for Attorney's Fees Under the Equal Access to
Justice Act. (Doc. 35, Opp.). Plaintiff has filed a Response
to Defendant's Opposition to EAJA Fees and Supplemental
Fee Request. (Doc. 38). This case is before the Court based
on the parties' consent to Magistrate Judge jurisdiction.
original Motion, Plaintiff sought an attorney's fee award
of $9087.54 based on 48.61 hours of service performed during
2012-2013. (Doc. 34). Defendant has not disputed that
Plaintiff was the prevailing party but contends that
Plaintiff has not clearly set forth in her Motion the hourly
rate for the fees requested. 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 $6, 279.24 for 34.754 hours of attorney
work on the case at $189.00 per hour is reasonable. (Doc. 35
at 4, 10 & n.2). Defendant clarifies that its submission
of a reasonable fee amount does not include the 3.3 hours
Plaintiff mentions as counsel's work performed in
connection with the EAJA Motion. (Doc. 35 at 1-2; see Doc. 34
at 9). In her Response and Supplemental Fee Request,
Plaintiff has requested $9, 087.54 in attorney's fees for
time spent on the substantive briefing plus $1, 613.13 for
time spent on the EAJA fees briefing for a total
attorney's fee award of $10, 700.67. (Doc. 38 at 20-22).
Plaintiff calculated counsel's hourly rate as $180.59 per
hour for work performed in 2011, $184.32 per hour for work
performed in 2012, and $186.55 per hour for work performed in
2013. (Doc. 38 at 1). Plaintiff's counsel claims 8.5
hours of work at the hourly rate of $189.78 for the EAJA
briefing. (Doc. 38 at 22).
Plaintiff is Entitled to an Award of Attorney's
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 the
Court's rejection of findings by the Administrative Law
Judge (“ALJ”) was based on the finding that the
ALJ had not sufficiently set forth his reasoning. According
to Defendant, such “articulation standards” in
the context of Social Security cases are flexible and that
deficiencies in articulation alone do not warrant an award of
attorney fees. Defendant contends that the Court's
resolution of this case turned on the weight and evaluation
of the evidence and thus the Commissioner's defense of
the ALJ's findings was substantially justified.
case, the ALJ found that Plaintiff had severe impairments
related to her back condition and chronic low back pain and
related to headaches. (Doc. 32, Order at 4). Plaintiff
asserted on appeal that the ALJ's residual functional
capacity (“RFC”) assessment was flawed because
the ALJ improperly rejected an examining doctor's opinion
and Plaintiff's credibility; that the ALJ erred at step
two in finding that her depression was not severe; and that
the ALJ improperly relied on the medical vocational
guidelines. (Id. at 2). Examining consultant Jerri
B. Hassman, M.D., reported on Plaintiff's back condition
and assessed certain physical restrictions in lifting,
carrying, and range of motion. (Id. at 4-5). The ALJ
submitted interrogatories to orthopedic surgeon Michael
Gurvey, M.D., who opined that Plaintiff could perform light
work with some restrictions. (Id. at 5). The ALJ
found that Plaintiff could perform the full range of
sedentary work as consistent with certain findings reported
by Dr. Hassman. (Id. at 5-6). The ALJ's findings
constituted error because the ALJ's RFC assessment
omitted additional restrictions as reported by Dr. Hassman
and because the ALJ did not provide specific and legitimate
reasons for accepting some, but not all, of Dr. Hassman's
opinion. (Id. at 6-7).
Court also found that the ALJ erred in assessing
Plaintiff's credibility. (Id. at 9-12). The ALJ
had pointed out that none of Plaintiff's doctors imposed
work restrictions but the record showed that Plaintiff's
treating physicians did not evaluate or comment on
Plaintiff's RFC and thus the absence of work restrictions
had little bearing on Plaintiff's credibility.
(Id. at 9). The ALJ stated that there were numerous
instances in the record that were indicative of
Plaintiff's non-compliance with the medical regimen
specified by her physicians but the ALJ did not support this
finding with any record support. (Id. at 9). The
Court found that “[r]eview of the record does not
reflect Plaintiff's non-compliance with medical
regimen” but that she consistently sought treatment for
her conditions and pain. (Id. at 9-10). The Court
further found as “unavailing” the ALJ's
finding that Plaintiff was not credible because she did not
exhibit weight loss and diffuse muscle atrophy which the ALJ
indicated were common side effects of chronic pain.
(Id. at 10). The ALJ and Defendant did not refer to
any medical provider statement in the record indicating that
these conditions would necessarily accompany Plaintiff's
impairments. (Id.) As the Court found, there was
“no basis on this record to disbelieve Plaintiff
because she did not exhibit the side effects described by the
the ALJ erroneously relied on the Grids to determine that
Plaintiff was not disabled. (Id. at 15). The Court
found that certain specific limitations imposed by Dr.
Hassman required the use of a vocational expert.
(Id.). These limitations had been improperly omitted
from the RFC assessment. (Id.).
contrary to Defendant's argument, the ALJ's errors
were not limited to “articulation standards.” The
ALJ erred by omitting material medical evidence in making his
RFC assessment. The ALJ erred by making findings and
conclusions relevant to the disability determination that
were not supported by record evidence. And the ALJ erred by
improperly relying on the Grids when medical evidence of
record required the use of a vocational expert. Because of
the ALJ's several fundamental errors, Defendant's
position was not substantially justified.
of the Attorney's Fees Request
support of the request for attorney's fees,
Plaintiff's counsel contends that the issues in this case
were “multiple and complex” and the record
consisted of 774 pages, all of which necessitated detailed
briefing. (Doc. 34 at 3-4). Counsel points out that she was
not Plaintiff's attorney before the Social Security
Administration and thus had to become familiar with the
record at the federal court level. (Id. at 4-5).
Counsel states she is a sole practitioner with a limited
part-time assistant but that she has “significant
experience in disability cases.” (Id. at 5).
objects that the 30 hours of attorney work Plaintiff's
counsel has reported for preparing and drafting the statement
of facts regarding Plaintiff's opening brief is
excessive. Defendant points out that Plaintiff's opening
brief was excessively long in that it consisted of 26 pages
with an attached statement of facts totaling 18 pages. (Doc.
35 at 10). Defendant argues for a 15-hour reduction of the
hours billed for preparing brief and the statement of facts.
(Id.). Defendant contends that the issues in this
case were not novel and the record was not uncommonly long.
Court will sustain Defendant's objection in part and
reduce the hours counsel spent preparing the statement of
facts ¶ 20 hours. This amounts to a deletion of ten
hours at the 2013 hourly rate of $186.55, for a total
reduction of $1, 865.50. The Court will allow Plaintiff's
counsel's request for $1, 613.13 for time spent on the
EAJA fees briefing. The Court finds that an attorney's
fee award of $8, 835.17 ...