Kirk v. Berryhill, 2:13–cv–2571–EFB

• Decision Date: 22 March 2017
• Docket Number: No. 2:13–cv–2571–EFB,2:13–cv–2571–EFB
• Citation: 244 F.Supp.3d 1077
• Parties: Vonda K. KIRK, Plaintiff, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Eastern District of California

244 F.Supp.3d 1077

Vonda K. KIRK, Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

No. 2:13–cv–2571–EFB

United States District Court, E.D. California.

Signed March 22, 2017

Barbara Marie Rizzo, Law Office of B. Marie Rizzo, Waikoloa, HI, for Plaintiff.

Bobbie J. Montoya, United States Attorney's Office, Sacramento, CA, Brenda Pullin, Social Security Administration Office of General Counsel, San Francisco, CA, for Defendant.

ORDER

EDMUND F. BRENNAN, UNITED STATES MAGISTRATE JUDGE

Plaintiff moves for an award of attorneys' fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1). ECF No. 30. She seeks fees based on 95.7 hours of work performed by attorney Barbara Rizzo at a rate of $190.06 per hour. She seeks costs in the amount of $114.10. Id. at 2. Plaintiff also seeks an additional 10 hours at $190.06 for reviewing and preparing a reply to defendant's opposition to her fee motion, for a total amount of $20,089.34. ECF No. 33 at 14. Defendant argues that plaintiff is not entitled to reasonable attorney fees under the EAJA because the Commissioner's position was substantially justified. ECF No. 32. Alternatively, she argues that the number of hours sought is unreasonable and should be reduced accordingly. Id.

I. Substantial Justification

The EAJA provides that a prevailing party other than the United States should be awarded fees and other expenses incurred by that party in any civil 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). "[T]he ‘position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." Gutierrez v. Barnhart , 274 F.3d 1255, 1259 (9th Cir. 2001) (citing 28 U.S.C. § 2412(d)(2)(D) and Comm'r, INS v. Jean , 496 U.S. 154, 159, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) (explaining that the "position" relevant to the inquiry "may encompass both the agency's prelitigation conduct and the [agency's] subsequent litigation positions")). Therefore, the court "must focus on two questions: first, whether the government was substantially justified in taking its original action; and, second, whether the government was substantially justified in defending the validity of the action in court." Kali v. Bowen , 854 F.2d 329, 332 (9th Cir. 1988). The burden of establishing substantial justification is on the government. Gutierrez , 274 F.3d at 1258 (9th Cir. 2001).

A position is "substantially justified" if it has a reasonable basis in law and fact. Pierce v. Underwood , 487 U.S. 552, 565–66, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ; United States v. Marolf , 277 F.3d 1156, 1160 (9th Cir. 2002). Substantially justified has been interpreted to mean "justified to a degree that could satisfy a reasonable person" and "more than merely undeserving of sanctions for frivolousness." Underwood , 487 U.S. at 565, 108 S.Ct. 2541 ; see also Marolf , 277 F.3d at 1161. The mere fact that a court reversed and remanded a case for further proceedings "does not raise a presumption that [the government's] position was not substantially justified." Kali , 854 at 335 ; see also Lewis v. Barnhart , 281 F.3d 1081, 1084–86 (9th Cir. 2002) (finding the defense of an ALJ's erroneous characterization of claimant's testimony was substantially justified because the decision was supported by a reasonable basis in law, in that the ALJ must assess the claimant's testimony and may use that testimony to define past relevant work as actually performed, as well as a reasonable basis in fact, since the record contained testimony from the claimant and a treating physician that cast doubt on the claimant's subjective testimony); Le v. Astrue , 529 F.3d 1200, 1201–02 (9th Cir. 2008) (finding that the government's position that a doctor the plaintiff had visited five times over three years was not a treating doctor, while incorrect, was substantially justified since a nonfrivolous argument could be made that the five visits over three years were not enough under the regulatory standard especially given the severity and complexity of plaintiff's alleged mental problems).

However, 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 substantially justified. See Gutierrez , 274 F.3d at 1259–60 ; Sampson v. Chater , 103 F.3d 918, 921–22 (9th Cir. 1996) (finding that the ALJ's failure to make necessary inquiries of the unrepresented claimant and his mother in determining the onset date of disability, as well as his disregard of substantial evidence establishing the same, and the Commissioner's defense of the ALJ's actions, were not substantially justified); Flores v. Shalala , 49 F.3d 562, 570, 572 (9th Cir. 1995) (finding no substantial justification where ALJ ignored medical reports, both in posing questions to the VE and in his final decision, which contradicted the job requirements that the ALJ deemed claimant capable of performing); Corbin v. Apfel , 149 F.3d 1051, 1053 (9th Cir. 1998) (finding that the ALJ's failure to determine whether the claimant's testimony regarding the impact of excess pain she suffered as a result of her medical problems was credible, and whether one of her doctors' lifting restrictions was temporary or permanent, and the Commissioner's decision to defend that conduct, were not substantially justified); Crowe v. Astrue , 2009 WL 3157438, *1 (E.D. Cal. Sept. 28, 2009) (finding no substantial justification in law or fact based on ALJ's improper rejection of treating physician opinions without providing the basis in the record for so doing); Aguiniga v. Astrue , 2009 WL 3824077, *3 (E.D. Cal. Nov. 13, 2009) (finding no substantial justification in ALJ's repeated mischaracterization of the medical evidence, improper reliance on the opinion of a non-examining State Agency physician that contradicted the clear weight of the medical record, and improperly discrediting claimant's subjective complaints as inconsistent with the medical record).

Here, the court granted plaintiff's motion for summary judgment and remanded the matter to the Commissioner for further proceedings, finding that the ALJ failed to consider all of plaintiff's impairments and failed to provide legally sufficient reasons for discounting plaintiff's subjective complaints. As this court observed, the ALJ failed to adequately consider plaintiff's back pain, bowel incontinence, migraines, and fibromyalgia in assessing her residual functional capacity. ECF No. 28 at 5–9. "In determining a claimant's residual functional capacity, the ALJ must consider all of a claimant's determinable impairments, including those that are not server." Ghanim v. Colvin , 763 F.3d 1154, 1166 (9th Cir. 2014). Given the failure to consider all of plaintiff's impairments, which the ALJ was required to do, the Commissioner's position is not substantially justified.

The Commissioner's defense of the ALJ's decision also lacks substantial justification. The ALJ's failure to provide legally adequate reasons for rejecting statements from plaintiff and third parties was contrary to controlling law in this circuit. While an absence of objective test findings to account for allegations of pain is a legitimate factor to consider, the Ninth Circuit has made clear that an ALJ may not reject a claimant's pain testimony based solely on a finding that his or allegations are not supported by objective medical evidence. See Bunnell v. Sullivan , 947 F.2d 341, 345 (9th Cir. 1991) (An ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain."); Burch v. Barnhart , 400 F.3d 676, 681 (9th Cir. 2005) ("Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis."). Despite this settled law, the ALJ provided no other reason for discounting plaintiff's allegations of limitations and pain. AR 38–40. The Commissioner was not substantially justified in defending the ALJ's disregard of Ninth Circuit authority.

The Commissioner suggests, however, that her position was substantially justified because the court rejected plaintiff's argument, in favor of the Commissioner's position, that the ALJ properly weighed the medical opinion evidence of record. This contention unduly focuses on defendant's success on a single argument. As a whole, the government's position in this court was that the ALJ's decision that plaintiff was not disabled was supported by substantial evidence and the properly legal standards were applied. As just explained, the ALJ did not apply the proper legal standard and the Commissioner was not substantially justified in defending the ALJ's errors. Accordingly, the government's position was not substantially justified.

II. Reasonableness of Fee Request

The Commissioner also argues that the number of hours counsel expended in litigating this case was not reasonable. ECF No. 32 at 5–10. The EAJA directs the court to award a reasonable fee. 28 U.S.C. § 2412(d)(2)(A). In determining whether a fee is reasonable, the court considers the hours expended, the reasonable hourly rate and the results obtained. See Comm'r, INS v. Jean , 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990) ; Hensley v. Eckerhart , 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) ; Atkins v. Apfel , 154 F.3d 986 (9th Cir. 1998). "[E]xcessive, redundant, or otherwise unnecessary" hours should be excluded from a fee award, and charges that are not properly billable to a client are not properly billable to the government. Hensley , 461 U.S. at 434, 103 S.Ct. 1933. An award of fees should be properly...