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Pedro v. Berryhill

United States District Court, D. Oregon, Pendleton Division

February 27, 2018

PAMELA J. PEDRO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          MARK D. CLARKE, United States Magistrate Judge

         Plaintiff Pamela J. Pedro filed an application for attorney fees pursuant to the Equal Access to Justice Act ("EAJA") (#32), 28 U.S.C. § 2412, seeking fees in the amount of $5, 697.24. The Commissioner does not contest Plaintiff is entitled to EAJA fees but objects to the full amount of fees requested, arguing Plaintiff should not be awarded fees for work performed after she rejected the Commissioner's offer for remand because the work performed after the remand offer did not substantially advance her position. For the reasons below, the Court agrees with Plaintiff that the time requested was reasonably expended and recommends awarding Plaintiff fees in the amount of $5, 697.24.

         BACKGROUND

         Plaintiff obtained a judgment remanding this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings (#31). Plaintiff is the prevailing party. Plaintiff alleges that her net worth meets the EAJA net-worth requirements. The Commissioner concedes that the administrative decision was not substantially justified and stipulates to the hourly rate; no objections are raised to the fee rate proposed by Plaintiff. Rather, the Commissioner asks that the Court exclude fees for work performed after the Commissioner offered to remand the case for further administrative proceedings. The Commissioner's reduction would result in an EAJA fee award of $4, 384.38, instead of the $5, 697.24 requested by Plaintiff. Plaintiff objects to the Commissioner's request.

         LEGAL STANDARD

         The EAJA provides that "a court shall award to a prevailing party... 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." 28 U.S.C. § 2412(d)(1)(A). "[F]ees and other expenses" include "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A). The EAJA does, however, provide for a certain amount of flexibility; section 2412(d)(1)(C) empowers the district court to '"reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy.'" Comm 'r, INS v. Jean, 496 U.S. 154, 161 (1990) (quoting 28 U.S.C. § 2412(d)(1)(C)).

         In determining a proper fee award under the EAJA, a court must consider the reasonableness of fees resulting from a motion or appeal that does not advance the moving party's position in any way. Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). While "[t]here is no precise rule or formula for making these determinations, " a court may consider an array of factors, which include the results obtained from the disputed work. Hensley v. Echerhart, 461 U.S. 424, 434, 436 (1983). The Supreme Court has explained the prevailing party's counsel "should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice" is ethically obligated to do so. Id. at 434 (internal citations omitted).

         DISCUSSION

         As discussed, the Commissioner concedes the administrative decision was not substantially justified and that Plaintiff is entitled to fees but challenges the amount of fees Plaintiff is entitled to. Specifically, the Commissioner takes issue with Plaintiffs request for fees on work performed after the Commissioner offered to remand for further proceedings. The Commissioner maintains that the time expended after the offer for remand was proposed did not advance Plaintiffs position in any way because the Court ultimately remanded the case for further proceedings, and did so in line with the Commissioner's recommendations. Thus, it argues, the time expended after the remand offer was excessive, redundant, or otherwise unnecessary.

         In Carr v. Colvin, 6:13-cv-00521-PK, 2014 WL 7447739, at *1 (D. Or. Dec. 29, 2014), the court was tasked with deciding this issue. There, as here, the plaintiff sought attorney fees and costs after the Commissioner requested a remand for further proceedings. Id. at * 1. The Commissioner did not contest the plaintiffs entitlement to fees but, instead, argued, as the Commissioner does here, that the plaintiffs fee award should exclude the time the plaintiff spent unsuccessfully opposing the Commissioner's request for remand, as that "work did not accomplish any substantial advancement" in the plaintiffs position. Id. at *4.

         In response, the plaintiff argued that such hours were reasonable and that he accomplished an advancement in his position because "the Commissioner's 'proposed conditions for remand would have granted more limited consideration.'" Id. at * 3. In particular, the plaintiff contended that, in seeking remand, the Commissioner did not concede error regarding a doctor's medical opinion. Id. The court rejected the plaintiffs argument, finding that "the Commissioner's refusal to concede the ALJ's initial error in evaluating Dr. Freed's opinion does not upset the fact that the Request asked this court to grant an inclusive reevaluation of all of the medical evidence..., which... d[id] not place any condition on the weight assignment for Dr. Freed's opinion." Id. Thus, the court found that, "contrary to [the plaintiffs] assertions otherwise, this Court's ultimate decision was not 'significantly more favorable' than the terms imposed on the Commissioner's Request." Id. at *4. Accordingly, the court held that the time the plaintiff spent opposing the Commissioner's remand request was not reasonably expended and excluded this time from the plaintiffs fee award. Id.

         Here, as in Carr, the Commissioner argues that Plaintiff should not be awarded fees for time spent opposing the Commissioner's remand request because the case was ultimately remanded for further proceedings, as the Commissioner requested. But, in contrast with Carr, the Court finds that, in this case, Plaintiff did advance her position by opposing the Commissioner's request. In arguing for remand, the Commissioner made two arguments. First, the Commissioner opined that Plaintiffs mental health counselor Lyn Westhoff s treatment notes were not included in the record and that this rendered the administrative record incomplete. Second, the Commissioner maintained that, even if the record were deemed to be sufficiently developed, remand for further proceedings was necessary because conflicting evidence already existed regarding the severity of Plaintiff s mental impairments.

         As in Carr, Plaintiff opposed the Commissioner's remand request, instead arguing that (1) the record was sufficiently complete and no missing records existed, and (2) the record contained no conflicting evidence. While the Court found the record incomplete and thus that remand was necessary to reconsider the medical evidence and Plaintiffs subjective complaints in light of Ms. Westhoff s previously omitted treatment notes, the Court agreed with Plaintiff that, contrary to the Commissioner's argument, the existing record contained no conflicting evidence about the severity of Plaintiff s mental impairments. In fact, the Court found that "when the existing medical evidence is properly considered, Plaintiff meets the criteria for a finding of disabled[, ]" R. & R., at 11, a significant departure from the Commissioner's contention that existing conflicting evidence precluded a disability finding by the Court. The Court thus noted that, unless Ms. Westhoff s treatment record warranted rejecting the existing evidence in the record, a disability finding was warranted.[1]

         Accordingly, Plaintiffs "refusal to accept the Commissioner's request for remand ... did [] accomplish [a] substantial advancement in [her] position, " Carr, 2014 WL 7447739, at *4, and, indeed, clarified the issues on remand. Time spent opposing this request was thus reasonably ...


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