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Smith v. Commissioner of Social Security

United States District Court, E.D. California

July 18, 2016

JAMES D.A. SMITH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE

         Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pending before the court is plaintiff’s motion (Doc 29) and supplemental application (Doc. 33) for fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”).[1]

         Because this court issued a remand pursuant to sentence four of 42 U.S.C. § 405(g), plaintiff is a prevailing party for EAJA purposes. See Flores v. Shalala, 42 F.3d 562 (9th Cir. 1995). Under the EAJA, an award of reasonable attorney’s fees is appropriate unless the Commissioner’s position was “substantially justified” on law and fact with respect to the issue(s) on which the court based its remand. 28 U.S.C. § 2412(d)(1)(A); see Flores, 42 F.3d at 569. No presumption arises that the Commissioner’s position was not substantially justified simply because the Commissioner did not prevail. See Kali v. Bowen, 854 F.2d 329 (9th Cir. 1988). The Commissioner’s position is substantially justified if there is a genuine dispute. See Pierce v. Underwood, 487 U.S. 552 (1988). The burden of establishing substantial justification is on the government. See Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

         In determining substantial justification, the court reviews both the underlying governmental action being defended in the litigation and the positions taken by the government in the litigation itself. See Barry v. Bowen, 825 F.2d 1324, 1331 (9th Cir. 1987), disapproved on other grounds, In re Slimick, 928 F.2d 304 (9th Cir. 1990). Where the underlying government action was not substantially justified, it is unnecessary to determine whether the government’s litigation position was substantially justified. See Andrew v. Bowen, 837 F.2d 875, 880 (9th Cir. 1988). “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) (citing Flores, 49 F.3d at 570).

         In this case, plaintiff argued: (1) the ALJ failed to provide reasons for tacitly rejecting limitations assessed by Drs. Hsia and Johnson; and (2) the ALJ erred by failing to fully develop the record. As to Dr. Hsia, the court held:

The court agrees with plaintiff. There are several areas in which the ALJ’s residual functional capacity assessment reflects a silent rejection of Dr. Hsia’s opinions despite the ALJ having given such opinions significant weight. Most notably, Dr. Hsia concluded that plaintiff is precluded from sitting more than 60 minutes and made no mention of normal breaks, yet the ALJ determined that plaintiff can sit for six hours with normal break but provided no reasoning to support the less- restrictive limitation. The ALJ likewise rejected Dr. Hsia’s opinion that plaintiff is precluded from standing more than 15 minutes.

         As to Dr. Johnson, the court held:

Again, the court agrees. In particular, the ALJ erred by failing to discuss Dr. Johnson’s assessed limitations to climbing. According to Dr. Johnson, plaintiff cannot climb. Dr. Johnson does not limit this restriction to only ladders, ropes, or scaffolds. The ALJ, however, concluded that plaintiff can occasionally climb stairs, thereby appearing to reject without explanation Dr. Johnson’s more restrictive opinion.

         Finally, regarding development of the record, the court held: “As discussed above, the evidence regarding Dr. Johnson’s climbing limitation is ambiguous in that it is not clear whether the limitation applies to stairs.”

         Restating the arguments raised in earlier briefs, defendant contends that plaintiff is not entitled to EAJA fees because its position was substantially justified. The underlying government action in this case, however, was not substantially justified because the Commissioner’s failure to properly evaluate the medical opinions of Drs. Hsia and Johnson violated the Commissioner’s own regulations. See Shafer v. Astrue, 518 F.3d 1067 (9th Cir. 2008); Gutierrez. V. Barnhart, 274 F.3d 1255 (9th Cir. 2001); Corbin v. Apfel, 149 F.3d 1051 (9th Cir. 1998).

         Plaintiff seeks a total award of $8, 249.78 ($6, 129.08 in original motion and $2, 120.70 in supplemental application). Defendant contends the amount sought in the original motion is not reasonable because: (1) 2.14 hours are claimed for work done prior to filing the action; (2) .28 hours are claimed for clerical tasks; and (3) .49 hours are claimed for work necessitated by counsel’s error or delay.[2] Upon review of the declarations submitted by plaintiff’s counsel relating to these specific hours claimed, the court finds defendant’s arguments unpersuasive and somewhat petty.

         The final issue involved in this fee dispute is to whom the EAJA award should be paid. Plaintiff requests payment of attorney fees directly to counsel; defendant argues payment must be made to plaintiff personally, unless it is determined that plaintiff does not owe a government debt. In fact, defendant apparently concedes that once a fee award has been determined, the Treasury will determine whether plaintiff owes a federal debt, and if not the government will accept the assignment of fees and will pay counsel directly.

         The undersigned agrees that Astrue v. Ratliff, 130 S.Ct. 2521, 2526-27 (2010), holds that an EAJA fee award is payable to the prevailing party, not the attorney, and is thus subject to offset for any debt owed to the government. To the extent plaintiff argues payment should be made directly to counsel as a representative payee, the court finds it unnecessary to reach such an argument given the Commissioner’s concession that if no governmental debt is owed, payment may be made directly to counsel. The Commissioner states “[i]f, after an EAJA fee is awarded to Plaintiff, Treasury determines that Plaintiff does not owe a federal debt, the government will accept the assignment of EAJA fees and pay fees directly ...


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