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Slade v. Colvin

United States District Court, E.D. California

February 13, 2014

SHERRY SLADE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

FINDINGS AND RECOMMENDATIONS GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d) (Doc. 30)

JENNIFER L. THURSTON, Magistrate Judge.

Sengthiene Bosavanh, attorney for Plaintiff Sherry Slade, seeks an award for attorney's fees and expenses pursuant to the Equal Access for Justice Act under 28 U.S.C. § 2412(d). (Doc. 30.) Defendant Carolyn Colvin, Acting Commissioner of Social Security ("Defendant"), opposes the motion, asserting Defendant's position was substantially justified and Plaintiff seeks an excessive amount of fees. (Doc. 31.) For the following reasons, the Court recommends the motion for attorney's fees be GRANTED IN PART AND DENIED IN PART.

I. Factual and Procedural History

Plaintiff initiated the action before this Court on July 31, 2012, seeking judicial review of the decision denying her application for benefits under the Social Security Act. (Doc. 1.) The Magistrate Judge found the administrative law judge ("ALJ") erred in considering the opinion of Plaintiff's treating physician, and recommended the action be remanded for further proceedings. (Doc. 19.) This recommendation was adopted by the Court on September 23, 2013, and the matter was remanded pursuant to sentence four of 42 U.S.C §405(g). (Doc. 27.)

Following the entry of judgment, Plaintiff filed the application for fees under the Equal Access to Justice Act ("EAJA") now pending before the Court on December 23, 2013. (Doc. 30.) Defendant filed an opposition to the motion on January 22, 2014. (Doc. 31.)

II. Legal Standards for EAJA Fees

The EAJA provides that a court shall award fees and costs incurred by a prevailing party "in any civil action... including proceedings for judicial review of agency action, brought by or against the United States... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). A party eligible to receive an award of attorney fees under the EAJA must be the prevailing party who received a final judgment in the civil action. 28 U.S.C. § 2412(d)(2)(H).

The party seeking the award of EAJA fees has the burden of proof that fees requested are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 434, 437 (1983); see also Atkins v. Apfel, 154 F.3d 988 (9th Cir. 1998) (specifically applying these principles to fee requests under the EAJA). As a result, "[t]he fee applicant bears the burden of documenting the appropriate hours expended in the litigation, and must submit evidence in support of those hours worked." Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992); see also 28 U.S.C. § 2412(d)(1)(B) ("A party seeking an award of fees and other expenses shall... submit to the court an application for fees and other expenses which shows... the amount sought, including an itemized statement from any attorney... stating the actual time expended"). The court has an independent duty to review the evidence to determine the reasonableness of the hours requested in each case. Hensley, 461 U.S. at 433, 436-47.

Where documentation of the expended time is inadequate, the court may reduce the requested award. Hensley, 461 U.S. at 433, 436-47. Further, "hours that were not reasonably expended" should be excluded from an award, including "hours that are excessive, redundant, or otherwise unnecessary." Id. at 434. A determination of the number of hours reasonably expended is within the Court's discretion. Cunningham v. County of Los Angeles, 879 F.2d 481, 484-85 (9th Cir. 1988).

III. Discussion and Analysis

A claimant who receives a sentence four remand in a Social Security case is a prevailing party for EAJA purposes. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995). Consequently, Plaintiff was the prevailing party because the Court ordered a remand of the matter for further proceedings pursuant 42 U.S.C. § 405(g). (Doc. 27). Defendant does not dispute that Plaintiff is a prevailing party, but argues the position of the Commissioner was substantially justified and the fees requested are excessive. (Doc. 31.)

A. Defendant's position was not substantially justified.

The burden of proof that the position was substantially justified rests on the government. Scarborough v. Principi, 54 U.S. 401, 403 (2004); Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005). The Supreme Court has defined "substantially justified" as "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). In addition, "[a] substantially justified position must have a reasonable basis in both law and fact." Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

Establishing that a position was substantially justified is a two-step process. 28 U.S.C. § 2412(d)(2)(D). First, Defendant must demonstrate "the action or failure to act by the agency" was substantially justified. Id. Second, Defendant must establish the position taken in the civil action was substantially justified. Id. The inquiry into whether or not the government had a substantial justification must be found on both inquiries. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Thus, here, both the ALJ's decision and the Commissioner's arguments to this Court in defense of the administrative decision must have been substantially justified. To find that a position was substantially justified when based on violations of the Constitution, federal statute, or the agency's own regulations, is an abuse of discretion. Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996).

Plaintiff's case was remanded for the ALJ's failure to evaluate the medical evidence in a proper manner. (Docs. 25, 27.) The ALJ gave little weight to the opinion of Dr. Barletta, Plaintiff's treating physician, noting: "Dr. Barletta had treated the claimant only twice when he completed the September 2005 assessment, and did not treat her after December 2005." AR at 34. On the other hand, as observed by the Court, the ALJ gave "substantial weight' to the opinions of Dr. Gikick, who examined Plaintiff only once, and Dr. Doren, who neither treated nor examined Plaintiff." (Doc. 25 at 11.) In light of this fact, the Court determined "the duration of Dr. Barletta's treatment of Plaintiff, in these circumstances, was not a specific, legitimate reason for rejecting the opinion of Dr. Barletta." ( Id. )

Defendant argues the ALJ's actions were substantially justified because "the Commissioner's regulations specifically direct that an ALJ can consider [t]he length of the treatment relationship and the frequency of examination' in assessing a medical opinion." (Doc. 31 at 4) (quoting 20 C.F.R. § 404.1527(b)(2)(i)). In addition, Defendant observes: "The Ninth Circuit has also held that the weight affording a treating physician's opinion depends on the duration, frequency, and nature of contact with the claimant." ( Id. ) (citing Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007); Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003)). Further, Defendant argues that "the ALJ found the assessment inconsistent with the objective medical record." ( Id. at 4-5) (citing AR 31, 34). Defendant cites notes and medical records from 2005 to 2007, arguing "the medical records and Plaintiff's acknowledged activities indicate she could maintain her neck ...


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