Opinion
2:18-cv-00581-JR
08-03-2022
GREGORY LEE G.,[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINSTRATION, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiff Gregory G. moves for attorney fees and costs under the Equal Access to Justice Act (“EAJA”) in the amounts of $17,260.12 and $182.24, respectively. For the reasons set forth below, plaintiff's motion should be granted in part, in that EAJA fees should be awarded in the reduced sum of $14,296.60 and costs should be awarded in full.
BACKGROUND
Born in 1957, plaintiff alleged disability beginning June 2010 due to bilateral carpal tunnel syndrome, right ulnar nerve neuropathy, cervical degenerative disc disease with radiculopathy, arthritis in the neck and shoulders, lumbar degenerative disc disease, complex regional pain syndrome (“CRPS”), anxiety, and depression.
Plaintiff filed for Title II Disability Insurance Benefits in January 2011. His application was denied initially and upon reconsideration. In September 2012, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert and a medical expert. In November 2012, the ALJ issued an opinion finding plaintiff not disabled.
That decision was subsequently reversed and remanded for further proceedings by District Judge Brown in June 2015. A second administrative hearing was held in June 2016 before a new ALJ. In August 2017, a supplementary hearing was held to address new evidence - specifically, a Cooperative Disability Investigation Unit report. In January 2018, the ALJ issued a second unfavorable decision.
In July 2019, this Court entered judgment affirming the ALJ's decision and dismissing the case. Plaintiff appealed that decision and, in May 2022, the Ninth Circuit reversed and remanded for further administrative proceedings. On July 8, 2022, plaintiff filed the present motion for EAJA fees and costs. Briefing was completed in regard to that motion on July 26, 2022.
DISCUSSION
Plaintiff seeks costs in the amount of $182.24 for postage and delivery, and fees in the amount of $3,591.34 for the work of attorney James Coon on the Ninth Circuit appeal. See generally Coon Decl. (doc. 35). Plaintiff also requests fees for attorney Nancy Meserow in the amount of $13,668.78, which already accounts for a substantial reduction in the hours spent at the district court level. See generally Meserow Decl. (doc. 34).
The Commissioner of Social Security (“Commissioner”) does not dispute plaintiff is the prevailing party or assert there are any special circumstances that would make an award of attorney fees and costs unjust. The Commissioner, however, opposes plaintiff's motion on the grounds her position was substantially justified and the requested fees unreasonable. Concerning the latter, the Commissioner does not contest Mr. Coon's fees and costs, but argues that Ms. Meserow's fees should be reduced as follows: (1) “$2,963.52 for the 9.8 hours spent on October 3, 2018, and October 4, 2018, and the 4.9 hours spent on December 8, 2018,” because this time was dedicated to briefing issues “that were not pressed on appeal”; (2) “$2,378.88 for the 11.8 hours spent drafting the objections to the Findings and Recommendation on March 13, 2019, and March 14, 2019,” because they were “unsuccessful”; and (3) “$1,000 or approximately 10 percent to account for the routine issues, Attorney Meserow's experience and familiarity with the case, and duplication of effort.” Def.'s Resp. to Mot. EAJA Fees 6-8 (doc. 37).
I. Substantial Justification
A prevailing plaintiff is not entitled to EAJA fees when the Commissioner's positions were “substantially justified” at each stage of the proceedings. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). The “burden is on the government to prove substantial justification.” Barry v.Bowen, 825 F.2d 1324, 1330 (9th Cir. 1987), overruled on other grounds as recognized inMt.Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1462 (9th Cir. 1992). A plaintiff's success on the merits “does not raise a presumption that [the Commissioner's] position was not substantially justified.” Kali v. Bowen, 854 F.2d 329, 334 (9th Cir. 1988). Rather, the Commissioner's positions meet this standard when they are reasonably based both “in law and fact.” Lewis, 281 F.3d at 1083 (citation and internal quotations omitted). Thus, “substantially justified means there is a dispute over which reasonable minds could differ.” Gonzales v. Free Speech Coal., 408 F.3d 613, 618 (9th Cir. 2005) (citation and internal quotations omitted).
Here, the Ninth Circuit held that the ALJ's decision was not supported by substantial evidence. In particular, “[t]he ALJ's determination that CRPS was not medically determinable is not supported by substantial evidence because it relied on a mischaracterization of the testimony the medical expert provided in 2012 and ignored substantial record evidence of the clinical basis for the diagnosis.” Mem. Disposition 2 (doc. 29). Additionally, the ALJ “failed to consult . . . Social Security Ruling (SSR) 03-2p”, which provides guidance in evaluating CRPS. Id.; see also Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007) (Social Security Rulings “are binding on all components of the Social Security Administration” and “are to be relied upon . . . in adjudicating cases”) (citation and internal quotations omitted).
The Ninth Circuit also resolved that the ALJ failed to meaningfully address the 2011 and 2012 opinions from plaintiff's longstanding treating physician - Rodrigo Lim, M.D. - concerning plaintiff's “CRPS diagnosis and its attendant limitations.” Mem. Disposition 3 (doc. 29); see also Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007) (“[o]f course, an ALJ cannot avoid [the requirement to give reasons for rejecting a medical opinion] simply by not mentioning the treating physician's opinion and making findings contrary to it”). Although plaintiff did not request a remand for the immediate payment of benefits (such that the Ninth Circuit did not consider that issue), the Ninth Circuit did conclude the aforementioned errors were not harmless, such that further proceedings were warranted. Mem. Disposition 4 (doc. 29).
In reaching this conclusion, the Ninth Circuit applied the substantial evidence standard of review, which is “significant[ly] similar [to] the substantial justification standard.” Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013). As such, the Ninth “and other circuits have held that a holding that the agency's decision was unsupported by substantial evidence is a strong indication that the position of the United States was not substantially justified.” Id. (citation and internal quotations and ellipses omitted); see also Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (in the analogous immigration context, “it will be only a decidedly unusual case in which there is substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record”) (citation and internal quotations omitted); Hadden v. Bowen, 851 F.2d 1266, 1269 (10th Cir. 1988) (“a lack of substantial evidence indicates, but does not conclusively establish, that the government's position concerning a claim was not substantially justified”).
The Commissioner nonetheless attempts to distinguish this case from Meier and its progeny on the grounds that: (1) the ALJ “gathered additional evidence” following the first district court remand, such that the record expanded from 395 to 1,242 pages; (2) this Court affirmed the second ALJ decision; and (3) she reasonably defended the ALJ's step two finding and residual functional capacity formulation. Def.'s Resp. to Mot. EAJA Fees 2-6 (doc. 37). The fact that the record was further developed in the course of plaintiff's appeals is commonplace and not sufficient to demonstrate a reasonable basis in law and fact. Moreover, the Commissioner's lengthy defense of the ALJ's decision is largely a reiteration of the arguments the Ninth Circuit rejected. Accordingly, even if this Court found some of those arguments persuasive, the fact remains that “[t]he government's position must be substantially justified at each stage of the proceedings” -which it clearly was not given the Ninth Circuit's disposition. Meier, 727 F.3d at 872 (citation and internal quotations omitted). Substantial justification is therefore lacking.
II. Reasonableness of Fee Request
EAJA caps the hourly rate for attorney fees at $125.00, but adjusted for inflation. 28 U.S.C. § 2412(d)(2)(A). The statutory maximum hourly rates under EAJA are $201.60 for work performed in 2018, $205.25 for work performed in 2019, $206.77 for work performed in 2020, and $217.54 for work performed in 2021. K.E.B. v. Saul, 497 F.Supp.3d 855, 867 (C.D. Cal. 2020).
The court may reduce an EAJA award if the plaintiff's requested fees are unreasonable. Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012). The “lodestar” method set out in Hensley v. Eckerhart, 61 U.S. 424 (1983), determines whether a fee award meets this standard. Id. That is, the court multiplies “the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.” Id.
The Court agrees with the Commissioner that the hours Ms. Meserow spent briefing errors in relation to plaintiff's subjective symptom testimony and the proper legal remedy, neither of which were availing at the district court level or pursued on appeal to the Ninth Circuit, should be excluded. SeeSorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001) (“[h]ours expended on unrelated, unsuccessful claims” - i.e., those that “are entirely distinct and separate from the claims on which the plaintiff prevailed” - “should not be included in an award of fees”) (citation and internal quotations omitted). Accordingly, the Court reduces Ms. Meserow's 2018 billing statement by 14.7 hours, which corresponds to $2,963.52 given the statutory rate of $201.60. Meserow Decl. Attach. A (doc. 34-1).
The Commissioner's remaining arguments are unpersuasive. Namely, the fact that Ms. Meserow did not succeed during the objections process matters little in regard to the result obtained given that plaintiff prevailed on many of those same issues before the Ninth Circuit. Furthermore, this case involved a complicated procedural history and an underlying health condition - i.e., CRPS - that is poorly understood, which necessitated a greater time allocation in regard to dealing with issues surrounding the medical record (especially the longitudinal opinions of Dr. Lim). See Maya T. v. Saul, 2020 WL 2301314, *3 (D. Or. May 8, 2020) (“[i]mportantly, SSR 03-2p emphasizes that treating medical sources are of particular importance in CRPS cases and notes that conflicts in the medical evidence are not unusual”). In sum, relying on the “case-specific factors” identified in Costa, the Court concludes that the remainder of Ms. Meserow's hours are reasonable.
RECOMMENDATION
For the foregoing reasons, plaintiff's Application for EAJA Fees (doc. 33) should be granted in part, and attorney fees and costs should be awarded in the sums of $14,296.60 and $182.24, respectively.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.