Morgan v. Colvin

          FINDINGS AND RECOMMENDATION TO GRANT IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (DOC. 41-1)

          SANDRA M. SNYDER UNITED STATES MAGISTRATE JUDGE.

         These Findings and Recommendations are submitted to United States District Judge Lawrence J. O’Neil under 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule 302 of the United States District Court for the Eastern District of California.

         This is a Social Security appeal. Before the Court is Plaintiff’s motion for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. 41-1. No hearing was held as the Court found the matter suitable for submission on the papers. Local Rule 230(g).

         I. LEGAL AND FACTUAL BACKGROUND^[1]

         On March 27, 2012 Plaintiff filed a complaint, by his attorney, Sengthiene Bosavanh, challenging the denial of his disability insurance and supplemental security income benefits by the Commissioner of Social Security (“Commissioner”). Doc. 1. The Court issued Findings and Recommendation (“F&R”) to the district judge on May 24, 2013, recommending that he affirm the Commissioner’s denial of benefits. Doc. 28. After considering Plaintiff’s objections and finding them unpersuasive, the district judge adopted the F&R and entered judgment on June 25, 2013. Docs. 30-31.

         Plaintiff filed a notice of appeal from the Court’s judgment. Doc. 33. On November 10, 2015, the Ninth Circuit issued a memorandum, vacated the Court’s judgment and remanded with instructions for the Court to remand to the Commissioner for further proceedings. The panel found error by Administrative Law Judge (“ALJ”) in failing to address a factual conflict in the record. The panel rejected Plaintiff’s other challenges to the ALJ’s decision. Doc. 37. Accordingly, the Court issued an order on January 11, 2016, remanding the case for further administrative proceedings consistent with the Ninth Circuit’s memorandum. Doc. 39.

         On March 4, 2016, Plaintiff filed her EAJA motion with this Court.^[2] Therein, she seeks $13, 625.90 in attorney’s fees for 72.50 hours expended on this case.^[3] In support of the motion are the following: (1) the declaration of attorney Jeffrey H. Baird, (2) the affidavit of Ms. Bosavanh, (3) the fee agreement between Plaintiff and the Law Offices of Jeffrey Milam, (4) the Court’s January 11, 2016 order, (5) the Ninth Circuit’s memorandum, and (6) an itemized statement of the hours expended by Mr. Baird. Plaintiff asserts: (1) her motion is timely, (2) she is the prevailing party, (3) her net worth at the time this suit was filed did not exceed $2, 000, 000, (3) the government’s position was not substantially justified, and (4) the hourly rates and amount of time expended in the case were reasonable. Doc. 41. The Commissioner filed an opposition on April 20, 2016, objecting to Plaintiff’s motion on the ground that Commissioner’s position was substantially justified. Alternately, she contends that, if the Court finds her position not substantially justified, Plaintiff’s total fees should be reduced for hours expended on waived and unnecessary arguments. Doc. 43. A week later, Plaintiff filed a reply brief addressing the Commissioner’s position and reiterated the reasonableness of counsel’s time. Additionally, Plaintiff requests $608.90 in additional fees for time expended drafting the EAJA motion and reply brief, thereby bringing the total request to $14, 234.80. Doc. 44. The Commissioner did not request to file a sur-reply brief.

         II. DISCUSSION

         A. Eligibility For EAJA Fees

         As the Supreme Court has explained:

eligibility for a fee award in any civil action requires: (1) that the claimant be a “prevailing party”; (2) that the Government’s position was not “substantially justified”; (3) that no “special circumstances make an award unjust”; and, (4) pursuant to 28 U.S.C. § 2412(d)(1)(B), that any fee application be submitted to the court within 30 days of final judgment in the action and be supported by an itemized statement.

         Comm’r, I.N.S. v. Jean, 496 U.S. 154, 158, (1990). In dispute here is whether the Commissioner’s position was substantially justified.

“Substantial justification means ‘justified in substance or in the main- that is, justified to a degree that could satisfy a reasonable person.’ ” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)) (internal quotation marks omitted). “Put differently, the government’s position must have a ‘reasonable basis both in law and fact.’ ” Id. (quoting Pierce, 487 U.S. at 565). “The ‘position of the United States’ includes both the government’s litigation position and the underlying agency action giving rise to the civil action.” Id. Thus, if “the government’s underlying position was not substantially justified, we [must award fees and] need not address whether the government’s litigation position was justified.

Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014) (quotations omitted and emphasis added). It is the government who bears the burden of showing its position was substantially justified. Id. “The nature and scope of the ALJ’s legal errors are material in determining whether the Commissioner’s decision to defend them was substantially justified.” Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996).

         At the agency level, the ALJ found that Plaintiff could perform past relevant work as she actually performed it. While not expressly concluding the finding was legal error, the Ninth Circuit remanded the case based on the ALJ’s failure to “address or resolve” a conflict between Plaintiff’s description of her past work as a secretary and the physical residual functional capacity assessment of her capability by state medical consultant, Dr. K. Vu Do. The question therefore is whether, based on the record, the ALJ had a reasonable basis in law and fact in not addressing or resolving the conflict. See, e.g., Flores v. Shalala, 49 F.3d 562, 566 (9th Cir. 1995), as amended on denial of reh'g (June 5, 1995) (“the district court should . . . have considered whether the Secretary was substantially justified with respect to the procedural issue on which [Plaintiff] prevailed”).

         To recap, Plaintiff stated in her September 4, 2008, disability report that she had worked as a secretary for fifteen years. She reported spending each day walking, standing, and sitting for eight hours; stopping, handling, reaching, and grabbing/grasping for big objects for one hour; and writing, typing or handling small objects for eight hours. AR 142-143 (emphasis added). In contrast, Dr. Vu Do’s assessment stated Plaintiff could engage in “[f]requent BUE [bilateral upper extremities] handling/fingering, ” with frequent meaning between one-third to two-thirds of an eight-hour workday.^[4] AR 392, 394. Indeed, the conflict between the hours Plaintiff actually spent typing or handling small objects-eight hours-and Dr. Vu Do’s assessment that she could engage in handling or fingering for no more than two thirds-six hours-of an eight-hour workday was not addressed or resolved by the ALJ.

         Nevertheless, the Commissioner argues the ALJ was substantially justified because Plaintiff’s description of her past work as a secretary was implausible, buttressed by his finding that she lacked credibility, such that it was not reliable evidence. But this reason provides support, if any, for a basis in fact; not in law. An ALJ’s duty to interpret and resolve conflicts in the evidence is not novel. See, e.g., Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (“Where . . . medical reports are inconclusive, questions of credibility and resolution of conflicts in the testimony are functions solely of the Secretary.”) (quotations and citations omitted); Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 1985) (“the ALJ has the power to weigh conflicting evidence and reach the conclusion that [he] did not suffer from a severe mental impairment”); and Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 577 (9th Cir. 1988) (explaining that application of the Medical-Vocational Guidelines requires an ALJ to “weigh conflicting evidence concerning the claimant’s past work experience, ...