K.E.B. v. Saul

497 F.Supp.3d 855

K.E.B., Plaintiff,

v.Andrew M. SAUL, Commissioner of Social Security, Defendant.

Case No. 2:19-cv-09501-SHK

United States District Court, C.D. California.

Signed October 28, 2020

Benjamin Paul Feld, Ghitterman Ghitterman and Feld, Santa Barbara, CA, for Plaintiff.

Armand D. Roth, Jennifer Lee Tarn, Assistant US Attorney LA-SSA, SAUSA—Social Security Administration Office of the General Counsel—Region IX, San Francisco, CA, Assistant US Attorney LA-CV, AUSA—Office of US Attorney, Los Angeles, CA, for Defendant.

ORDER GRANTING IN PART PETITION FOR ATTORNEY FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT

SHASHI H. KEWALRAMANI, United States Magistrate Judge

Presently before the Court is Plaintiff K.E.B.'s¹ ("Plaintiff") Petition for Attorney Fees ("Petition" or "Pet.") and Costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). Electronic Case Filing Number ("ECF No.") 21, Pet. For the reasons discussed below, Plaintiff's Petition is GRANTED in part and DENIED in part.

I. BACKGROUND

Plaintiff filed an application for disability insurance benefits on June 29, 2016, and, after the Commissioner of the Social Security Administration ("Commissioner," "Agency," or "Defendant") denied Plaintiff's claim, Plaintiff appealed the Commissioner's decision to this Court. See ECF No. 1, Compl. In Plaintiff's appeal, Plaintiff raised three issues, including:

1) The failure of the [ALJ] to make any finding concerning additional sitting limitations despite overwhelming evidence of issues in this regard which would prevent full time employment;

2) The failure of the [ALJ] to make any finding concerning additional findings concerning Plauintiff's [sic] necessity to elevate her feet and the amount of time she would be off task; and

3) The finding that Plaintiff could perform past-relevant work as a bookkeeper, despite that factual support that the only way she performed this work was due to the fact that she was self-employed. On this basis alone, Plaintiff should be allowed to proceed to a step 5 finding in the sequential analysis.

ECF No. 18, Joint Stip. at 3-4.

Plaintiff argued these three issues in roughly two pages of the twelve-page Joint Stipulation² and provided an additional roughly three-page reply to Defendant's response in the Joint Stipulation. See id. at 3-5, 9-11. However, Plaintiff did not address each issue individually. See id. at 4-5. Instead, Plaintiff supported her arguments by asserting briefly that the ALJ erred by failing to include all her functional limitations in her residual functional capacity ("RFC") by: (1) improperly rejecting the opinions of three of Plaintiff's treating doctors; (2) finding Plaintiff's "testimony not consistent with the records that [the ALJ] wants to follow"; and (3) failing to consider that "[s]ince [Plaintiff] was self-employed, she could work at her own schedule and pace" and that jobs that accommodate Plaintiff's limitations in the way her self-employment did "simply do not exist in this fashion in the open labor market." Id. at 4-5, 10.

The Court, in its Opinion and Order ("Order"), found that "[a]lthough Plaintiff did not specifically address some of the evidence discussed" in the Order, the Court "weighed both the evidence that supports and detracts from the [ALJ's] conclusions[,] and f[ou]nd[ ] that the ALJ's rejection of Plaintiff's symptom statements was not supported by substantial evidence in the record." ECF No. 19, Order at 7-8 (citation and internal quotation marks omitted). Consequently, the Court found that "the ALJ's RFC determination and step-four findings w[ere] not supported by substantial evidence in the record" and the Court remanded the case to the Commissioner for further proceedings based on that issue only. Id. at 8.

Thereafter, Plaintiff filed the instant Petition and Defendant opposed Plaintiff's Petition ("Opposition" of "Opp'n"). ECF No. 21, Pet.; ECF No. 23, Opp'n. The issue is now fully briefed and ready for decision.

II. LEGAL STANDARD

"[EAJA] departs from the general rule that each party to a lawsuit pays his or her own legal fees." Hoa Hong Van v. Barnhart, 483 F.3d 600, 604 (9th Cir. 2007) (citations and internal quotation marks omitted). Instead, EAJA authorizes the Court to "award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." Meier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (citations and internal quotation marks omitted).

"EAJA ... has a built-in check: Section 2412(d)(1)(A) disallows fees where ‘special circumstances make an award unjust.’ " Scarborough v. Principi, 541 U.S. 401, 422-23, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004). Specifically, " § 2412(d)(1)(A)'s safety valve gives the court discretion to deny awards where equitable considerations dictate an award should not be made." Id. at 423, 124 S.Ct. 1856 (citation and internal quotation marks omitted).

III. DISCUSSION

Plaintiff's counsel ("Counsel") seeks $5,580.00 in attorney fees for 12.4 hours spent working on the case and $485 in costs. ECF No. 21, Pet. at 8.

Defendant opposes the Petition on two grounds, that: (1) "the Commissioner's actions were ‘substantially justified’ " and, alternatively, (2) "that an award would be unjust in light of Plaintiff's deficient briefing." ECF No. 23, Opp'n at 2. Defendant also argues that if the Court does not deny the Petition, it "should reduce Plaintiff's unreasonable fee requests and award $1,586.51 in EAJA fees" and "should allow only $400 for the filing fee under 28 U.S.C. § 1920." Id. at 2-3. The Court addresses each of Defendant's arguments in turn.

A. Defendant's Position Was Not Substantially Justified.

1. Defendant's Arguments

Defendant argues that "Plaintiff is not entitled to EAJA fees because the Commissioner's Position was substantially justified in relying on waiver ...." Id. at 3 (capitalization normalized). Defendant asserts that "[t]he government litigated this case and relied on waiver based on the fact that Plaintiff's contentions were largely conclusory in nature." Id. at 5 (citing Joint Stip. at 6). Defendant adds that "[b]ecause Plaintiff failed to dispute the ALJ's specific findings, Defendant argued that Plaintiff had waived and could no longer dispute them." Id. (citing Joint Stip. at 6-7). Defendant also adds that the Court "acknowledged[ ] Plaintiff failed to address ‘some of the evidence discussed [in its Order]’ supporting a remand" but nevertheless "chose [to] not penalize Plaintiff for any briefing deficiencies, filled in the gaps in Plaintiff's briefing, and remanded the matter for further proceedings." Id. at 6 (citing Opinion and Order at 7). Defendant argues that because "Plaintiff relied on largely conclusory contentions and the Court had to consider evidence that Plaintiff overlooked in the record as a whole[,] ... the Court should find that the position of the government was substantially justified and that Plaintiff is not entitled to EAJA fees." Id.

2. Court's Consideration Of Defendant's Position In Its Order

In its Order remanding the case for further proceedings, the Court observed Defendant's argument that "to the extent Plaintiff failed to specifically dispute the reasons provided by the ALJ for rejecting Plaintiff's symptom statements, ‘Plaintiff ignored those findings and may no longer dispute them.’ " Id. at 6-7. The Court, however, stated that "[a]lthough Plaintiff did not specifically address some of the evidence discussed [in the Order], the Court has weighed both the evidence that supports and detracts from the [ALJ's] conclusions[,]" and found that "the ALJ's rejection of Plaintiff's symptom statements was not supported by substantial evidence in the record." ECF No. 19, Order at 7-8.

Specifically, the Court noted that:

the ALJ rejected Plaintiff's symptom statements for the following five reasons: (1) Plaintiff's ADLs were "generally inconsistent with disability"; (2) "inconsistencies in the record" between Plaintiff's statements and the medical evidence; (3) Plaintiff's failure "take stronger prescribed pain medication instead of over-the-counter medication and a patch"; (4) Plaintiff's "noncompliance with medical evidence"; and (5) "limited and conservative treatment."

Id. at 12. The Court discussed each reason in turn and found that none were supported by substantial evidence in the record. See id. at 12-31.

3. Legal Standard

"It is the government's burden to show that its position was substantially justified." Meier, 727 F.3d at 870 (citation omitted). "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, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988) ). "Put differently, the government's position must have a ‘reasonable basis both in law and fact.’ " Id. (quoting Pierce, 487 U.S. at 565, 108 S.Ct. 2541 )).

"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. (citation and internal quotation marks omitted). "As EAJA provides, 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." Id. (citation, emphasis, and internal quotation marks omitted). "The ALJ's decision, therefore, is directly and literally ‘the action or failure to act by the agency upon which the civil action is based’ ... [and] EAJA's plain language thus directs courts to focus on the ALJ's decision." Id. at 870-71 (quoting 28 U.S.C. § 2412(d)(2)(D) ). "This court and other circuits have held that a holding that the agency's decision ... was unsupported by substantial evidence is ... a strong indication that the...