KAREN L. STROMBOM, Magistrate Judge.
This matter is before the Court on plaintiff's motion for attorney fees pursuant to the Equal Access to Justice Act (EAJA). Dkt. 21; 28 U.S.C. § 2412. This matter has been referred to the undersigned Magistrate Judge. Mathews, Sec'y of H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. § 636(b)(1)(B); Local Rule MJR 4(a)(4). For the reasons set forth below, the undersigned recommends plaintiff's motion be granted, subject to calculation of the total amount of attorney fees discussed herein.
Plaintiff sought judicial review of the denial of his applications for disability insurance and supplemental security income benefits, requesting that the ALJ's decision that she was not disabled be reversed and remanded. The Court agreed that the matter should be reversed and remanded, finding the ALJ had failed to resolve an apparent conflict between the vocational expert's testimony and the Dictionary of Occupational Titles (DOT), concerning the handling and fingering requirements of the two jobs the vocational expert at the hearing identified as jobs that plaintiff could do. Dkt. 18.
The EAJA provides:
28 U.S.C. § 2412(d)(1)(A). Thus, to be eligible for attorney fees under the EAJA: (1) the claimant must be a "prevailing party"; (2) the government's position must not have been "substantially justified"; and (3) no "special circumstances" exist that make an award of attorney fees unjust. Comm'r, Immigration and Naturalization Serv. v. Jean, 496 U.S. 154, 158 (1990).
In Social Security disability cases, "[a] plaintiff who obtains a sentence four remand is considered a prevailing party for purposes of attorneys' fees." Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (citing Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993).
As noted above, to be entitled to attorney fees, the government's position must not be "substantially justified." Jean, 496 U.S. at 158. Normally, for the government's position to be "substantially justified," this requires an inquiry into whether the government's conduct was "`justified in substance or in the main' — that is, justified to a degree that could satisfy a reasonable person" — and "had a `reasonable basis both in law and fact.'" Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); Penrod v. Apfel, 54 F.Supp.2d 961, 964 (D. Ariz. 1999) (citing Pierce, 487 U.S. at 565); see also Jean, 496 U.S. at 158 n.6; Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1995). This "does not mean `justified to a high degree.'" Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998) (quoting Pierce, 487 U.S. at 565). On the other hand, "the test" for substantial justification "must be more than mere reasonableness." Kali v. Bowen, 854 F.2d 329, 331 (9th Cir. 1988).
The government has the burden of establishing substantial justification. Gutierrez, 274 F.3d at 1258. Its position must be "as a whole, substantially justified." Id. at 1258-59 (emphasis in original). It also "must be `substantially justified' at `each stage of the proceedings.'" Corbin, 149 F.3d at 1052. "[D]istrict courts should focus on whether the government's position on the particular issue on which the claimant earned remand was substantially justified, not on whether the government's ultimate disability determination was substantially justified." Hardisty v. Astrue, 592 F.3d 1072, 1078 (9th Cir. 2010). Accordingly, the government must establish that it was substantially justified both in terms of "the underlying conduct of the ALJ" and "its litigation position defending the ALJ's error." Gutierrez, 274 F.3d at 1259. As the Ninth Circuit has explained:
Id.
"In evaluating the government's position to determine whether it [i]s substantially justified," therefore, the Court "look[s] to the record of both the underlying government conduct at issue and the totality of circumstances present before and during litigation." Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996); see also Kali, 854 F.2d at 332; Thomas v. Peterson, 841 F.2d 332, 334-35 (9th Cir. 1988). Indeed, the Ninth Circuit has explicitly stated that "[i]t is difficult to imagine any circumstance in which the government's decision to defend its actions in court would be substantially justified, but the underlying decision would not." Sampson, 103 F.3d at 922 (quoting Flores, 49 F.3d at 570 n.11). While the EAJA creates "a presumption that fees will be awarded unless the government's position was substantially justified," the government's "failure to prevail does not raise a presumption that its position was not substantially justified." Kali, 854 F.2d at 332, 334; Thomas, 841 F.2d at 335; see also Flores, 49 F.3d at 569.
Substantial justification will not be found where the government defends "on appeal . . . `basic and fundamental' procedural mistakes made by the ALJ." Lewis v. Barnhart, 281 F.3d 1081, 1085 (9th Cir. 2002) (quoting Corbin, 149 F.3d at 1053). In Corbin, the Ninth Circuit found "the failure to make [specific] findings" and "weigh evidence" to be "serious" procedural errors, making it "difficult to justify" the government's position on appeal in that case. 149 F.3d at 1053. In Shafer v. Astrue, the Ninth Circuit found the ALJ "committed the same fundamental procedural errors" noted in Corbin in failing "to provide clear and convincing reasons for discrediting [the claimant's] subjective complaints," and "to make any findings regarding" the diagnosis of a non-examining medical expert. 518 F.3d 1067, 1072 (9th Cir. 2008). It went on to find that the ALJ had committed additional procedural errors not present in Corbin, including rejecting "a treating physician's opinion in favor of a non-treating physician's opinion without providing clear and convincing reasons." Id.
Defendant argues the government's position was substantially justified, because the conflict between the vocational expert's testimony and the DOT was only potential and not apparent. See Johnson v. Astrue, 2009 WL 801238, at *4 (N.D. Cal. March 25, 2009) ("The ALJ must clarify the discrepancy in the opinion only where there is an apparent unresolved conflict that arises between the vocational expert's testimony and the DOT.") (quoting Mickelson-Wurm v. Comm'r Social Sec. Admin., 285 Fed. Appx. 482, 486 (9th Cir.2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1435-36 (9th Cir.1995)) (emphasis in the original). The undersigned, however, disagrees that the conflict was not apparent.
It is true that "not all potential conflicts between [a vocational] expert's job suitability recommendation and the" DOT's description of a job "will be apparent or obvious," and that "an ALJ need only follow up on those that are." Gutierrez v. Colvin, ___ F.3 ___, 2016 WL 6958946, at *2 (9th Cir. 2016). Accordingly, "[f]or a difference between an expert's testimony and the [DOT] to be fairly characterized as a conflict, it must be obvious and apparent." Id. "This means that the testimony must be at odds with the [DOT's description] of job requirements that are essential, integral, or expected." Id. "[T]asks that aren't essential, integral, or expected parts of a job are less likely to qualify as apparent conflicts that the ALJ must ask about." Id. "Likewise, where the job itself is a familiar one — like cashiering — less scrutiny by the ALJ is required." Id.
The ALJ, accordingly, "must ask follow up questions of a vocational expert when the expert's testimony is either obviously or apparently contrary to the [DOT], but the obligation doesn't extend to unlikely situations or circumstances." Id. at *3. Thus, "where the frequency or necessity of a [job's] task is unlikely and unforeseeable — as it is with cashiers having to reach overhead — there's no [such] obligation." Id. (observing that while "`frequent reaching' is required of both cashiers and stock clerks" in the DOT, "anyone who's made a trip to the corner grocery store knows that while a clerk stocking shelves has to reach overhead frequently, the typical cashier never has to.").
Here, the vocational expert testified that an individual with the same residual functional capacity as plaintiff, including the limitation to only occasional handling and fingering with the dominant right hand, could perform the jobs of food assembler and price marker. AR 81. Unlike the job of cashier, the jobs of food assembler and price marker largely involve tasks that require handling and fingering. For example, the job of food assembler requires:
DOT 319.484-010, 1991 WL 672769. The job of price marker in turn requires:
DOT 209.587-034, 1991 WL 671802.
While it may be that the DOT "refers to `occupations,' not to specific jobs," and that "`[o]ccupation' is a broad term that includes `the collective description' of `numerous jobs' and lists `maximum requirements' of the jobs as `generally performed'" — and therefore that "not all potential conflicts between [a vocational] expert's job suitability recommendation and the" DOT "will be apparent or obvious" — handling and fingering appear to be at the heart of both the food assembler and price marker jobs. Gutierrez, 2016 WL 6958646, at *2. Thus, it should have been fairly apparent, if not obvious, to the ALJ that any significant limitation in the ability to perform those tasks, such as from the frequent to the merely occasional, would create a conflict requiring further questioning.
Defendant also argues the DOT "does not indicate that either job . . . requires frequent handling or fingering with both hands." Dkt. 24, p. 3 (emphasis added). It is true that there may be some instances where the ability to use both upper extremities is not necessary to perform a job. For example, in Gutierrez the Ninth Circuit commented that even in the "atypical example" where "a store sells restricted merchandise, such as cigarettes, which are kept overhead," and therefore could require overhead reaching, the plaintiff's restriction "would not have prevented her from reaching overhead with her left arm." 2016 WL 6958646, at *3, n. 2 (emphasis in the original). It is not clear in that case, however, which arm was the plaintiff's dominant arm. In any event, unlike here where handling and fingering are the primary tasks, overhead reaching still would not have been an essential or integral part of the job. As such, the government's position on this issue did not have a reasonable basis in either law or fact.
Before granting attorney fees under the EAJA, the Court must determine whether those fees are "reasonable." Jean, 496 U.S. at 161; 28 U.S.C. § 2412(d)(1)(A). The test used to determine what fees are reasonable was set forth in Hensley v. Eckerhart, 461 U.S. 424 (1983), which dealt with recovery of attorney fees under 42 U.S.C. § 1988. That test "also is applicable to awards of fees under the EAJA." Sorenson v. Mink, 239 F.3d 1140, 1145 n.2 (9th Cir. 2001) (citing Jean, 496 U.S. at 161 (once private litigant has met eligibility requirements for EAJA fees, court's task of determining what fee is reasonable is essentially same as that described in Hensley)); see also Haworth v. State of Nevada, 56 F.3d 1048, 1051 (9th Cir. 1995) (case law construing what is "reasonable" fee applies uniformly to all federal fee-shifting statutes) (quoting City of Burlington v. Dague, 505 U.S. 557, 562, 112 S.Ct. 2638, 2641 (1992)).
In determining "the amount of a reasonable fee," the "most useful starting point" for the Court "is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433. To that end, "[t]he party seeking an award of fees should submit evidence supporting the hours worked and rates claimed." Id. "Where the documentation of hours is inadequate," the Court "may reduce the award accordingly." Id. Further, the Court "should exclude from this initial fee calculation hours that were not `reasonably expended,'" and "[c]ounsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Id. at 434.
Defendant argues plaintiff's fee request is unreasonable, because plaintiff's counsel billed 7.70 hours for preparing the reply brief, which was identical to the opening brief and appeared to simply be a re-filing of the latter. Dkt. 24 (citing Dkt. 13, 17, 21). In response, plaintiff's counsel states he was not aware of this error until now, and agrees the hours spent drafting that reply did not have an impact on the litigation and thus those hours should be removed from the fee request. Dkt. 25, p. 1. Accordingly, the undersigned finds plaintiff's fee request should be reduced from $2,797.40 (Dkt. 21, 21-1) by $1,476.09 (7.7 hours x $191.70
Based on the foregoing discussion, the undersigned recommends that the Court find the government's position was not substantially justified and that plaintiff is entitled to the amount of attorney fees noted above.
The parties have
