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Cargill v. Commissioner of Social Security

United States District Court, E.D. California

July 9, 2019

STEVE W. CARGILL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER ON MOTION FOR ATTORNEY FEES UNDER THE EAJA

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff commenced this social security action on May 4, 2016. (ECF No. 1.) On August 29, 2017, the Court granted Defendant's cross-motion for summary judgment.[1] (ECF No. 17.) Plaintiff appealed, and on March 6, 2019 the Ninth Circuit reversed and remanded for further proceedings; this Court then remanded the case to the agency and entered judgment for Plaintiff. (ECF Nos. 23, 25, 26.)

         Thereafter, Plaintiff filed the instant motion for attorneys' fees. (ECF No. 27.) Defendant opposes, contending its position has always been “substantially justified, ” and contending the fee amount requested is excessive; Plaintiff filed a reply. (ECF Nos. 29, 30.) After considering the parties' briefing and the applicable law, the Court GRANTS Plaintiff's motion for EAJA fees.

         Legal Standard

         The Equal Access to Justice Act (“EAJA”) provides for an award of fees, other expenses, and costs to a prevailing plaintiff in an action for judicial review of the Social Security Administration's actions “unless 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); see also sub. (B) (the prevailing, eligible party “shall also allege that the position of the United States was not substantially justified.”). The Supreme Court has defined “substantial justification” as:

“justified in substance or in the main” - that is, justified to a degree that could satisfy a reasonable person. [This standard] is no different from the “reasonable basis in both law and fact” formulation adopted by the Ninth Circuit and the vast majority of other Courts of Appeals that have addressed this issue.

Pierce v. Underwood, 487 U.S. 552, 565 (1988). A position does not have to be correct to be substantially justified; rather, the standard is satisfied if there is a “genuine dispute.” Id. at 565 and 566 n.2; see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). In determining the reasonableness of the government's position under the ‘totality of the circumstances' test, the court reviews both the underlying governmental action being defended in the litigation and the positions taken by the government in the litigation itself. § 2412(d)(1)(B); Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001). The government has the burden of demonstrating that its position was substantially justified, but its failure to prevail does not raise a presumption that its position was not substantially justified. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).

         As to the amount to award, the EAJA directs that any fee must be reasonable. 28 U.S.C. § 2412(d)(2)(A). In determining whether a fee is reasonable, the court considers the reasonable hourly rate, the hours expended, and the results obtained. See Commissioner, INS v. Jean, 496 U.S. 154, 163 (1990); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Atkins v. Apfel, 154 F.3d 986, 988 (9th Cir. 1998). The applicant must present “an itemized statement from any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed.” § 2412(d)(1)(B). An increase in the statutory rate of $125 may be justified to account for increases in the cost of living. See Sorenson v. Mink, 239 F.3d 1140, 1148-49 (9th Cir. 2001); see also Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005) (holding that the cost of living adjustment to the statutory cap is computed by multiplying the statutory cap by the consumer price index for urban consumers for the year in which the fees were earned, then dividing by the consumer price index figure on the date that the cap was imposed by Congress); Ninth Circuit Rule 39-1.6 and Notice re: EAJA rates (available at http://www.ca9.uscourts.gov/content/view.php?pkid=0000000039).

         EAJA fee applications are due “within thirty days of final judgment, ” which is “a judgment that is final and not appealable . . . .” 28 U.S.C. § 2412(d)(2)(G).

         Analysis

         I. Substantial Justification

         Plaintiff asserts he was the prevailing party, having obtained from the Ninth Circuit a remand for further proceedings under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993). Plaintiff asserts that Defendant's position was not substantially justified, given that the ALJ committed “legal error” in failing to appropriately justify why certain Listings were inapplicable and why the opinion of a treating physician was discounted. Thus, Plaintiff maintains fees are warranted under the EAJA.

         Defendant does not dispute Plaintiff's prevailing-party status, but contends the position of the Commissioner was substantially justified, making EAJA fees unwarranted. Flores, 49 F.3d at 569. Defendant argues the ALJ did not ignore the relevant Listings or the treating physician, but simply failed to sufficiently articulate the rationale relied upon. Further, Defendant argues that the split panel at the Ninth Circuit, and this Court's finding in favor of Defendant, is objective evidence that “reasonable minds” differed on the issues raised by Plaintiff in this action and on appeal.

         As to these arguments, the Court finds Plaintiff's to be more persuasive. On appeal, a majority panel at the Ninth Circuit held the ALJ committed “legal error” in failing to articulate the inapplicability of certain Listings, and in failing to “expressly explain” why the treating physician's opinion was discounted. See Cargill v. Berryhill, 762 Fed.Appx. 407, 409 (9th Cir. 2019). “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). As to the first issue, the Ninth Circuit focused on the fact that the ALJ's treatment of the Listing was “two sentences”-one of which was clear error and the other a boilerplate finding. The majority commented that though the dissent “may be correct that the ALJ's inference was reasonable, we are unable to so conclude based on a single conclusory statement.” Cargill, 762 Fed.Appx. at 409 (citing Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[T]he agency [must] set forth the reasoning behind its decisions in a way that allows for meaningful review.”)). As to the discounting of the treating physician's opinion, the majority panel concluded that precedent requires the ALJ to “expressly explain” the reasons for doing so-in order for a court to properly conduct a harmless error analysis. Id. at 410; see also Garrison v. Colvin, 759 F.3d 995, 1012-13 (9th Cir. 2014) (“[An] ALJ errs when he rejects a medical opinion or assigns it little weight while doing nothing more than ignoring it, asserting without explanation that another medical opinion is more persuasive, or criticizing it with boilerplate language that fails to offer a substantive basis for his conclusion.”). Thus, the Ninth Circuit appears to have focused on the procedural errors made by the ALJ, in violation of clear precedent. Given this determination, the Court cannot say the Commissioner's defense of the ALJ's findings were substantially justified. See Kirk v. Berryhill, 244 F.Supp.3d 1077, 1081 (E.D. Cal. 2017) (“When the government violates its own regulations, fails to acknowledge settled circuit case law, or fails to adequately develop the record, its position is not ...


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