United States District Court, D. Oregon
ORDER FOR EAJA FEES
Malcolm F. Marsh United States District Judge
October 11, 2016, the Court issued and Opinion and Order
reversing the Commissioner's of Social Security
("the Commissioner") final decision, and remanding
this case for an immediate payment of benefits. Op. &
Order, ECF No. 19. On January 7, 2017, Plaintiff Melissa Jo
Young requested an award of attorney fees in the amount of
$15, 269.26 for 79.7 hours of attorney time pursuant to the
Equal Access to Justice Act ("EAJA'), 28 U.S.C.
§ 2412. PL's Appl. for Fees, ECF No. 21. The
Commissioner does not dispute that Plaintiff is entitled to
fees, but contests the reasonableness of Plaintiff s request
and seeks a reduction to 30 hours of attorney time.
Def.'s Resp., ECF No. 24. Plaintiff has filed a reply.
Reply, ECF No. 25. For the reasons that follow, Plaintiffs
application for fees is granted in part and denied in part.
protectively filed an application for supplemental security
income ("SSI") disability benefits alleging
disability due to post-traumatic stress disorder
("PTSD"), hepatitis C, and pain in her foot, back,
and head, and difficulty balancing. Plaintiffs application
was denied initially and upon reconsideration. After a
hearing, the ALJ issued an unfavorable hearing. Plaintiff
appealed. Based on a stipulation by the parties, on September
13, 2013, the court entered an order reversing and remanding
the case for further administrative proceedings, including
that the ALJ undertake a drug abuse and alcoholism
("DAA") materiality analysis on remand. The Appeals
Council directed the ALJ to update the record, conduct
additional consultative examinations, reconsider medical
opinions, reconsider lay testimony, and continue the
sequential evaluation process, and if Plaintiff is found
disabled, "determine whether alcoholism is a
contributing factor material to the finding of
consultative examinations and a new hearing were conducted,
the ALJ issued a decision finding that Plaintiff is disabled
because she meets or equals Listing 12.06 and 12.09. However,
undertaking the DAA materiality analysis, the ALJ found
Plaintiff has the residual functional capacity to perform a
modified level of light work if the substance stopped.
Accordingly, the ALJ determined Plaintiffs alcoholism is a
contributing factor material to her disability determination,
and therefore, she is not entitled to disability benefits.
Op. & Order at 4-5.
appeal to this court, I concluded that the ALJ erroneously
evaluated the medical evidence at step three of the DAA
materiality analysis. Specifically, I concluded that the ALJ
erred in finding that Plaintiffs Paragraph B limitations of
Listing 12.06 would improve from "marked" to
"moderate" in the absence of her substance abuse
and failed to consider Dr. Rawlins' 2006 Mental Residual
Functional Capacity Assessment. Additionally, I noted that
the case "demonstrates the difficulty in disentangling a
claimant's substance abuse from a co-occurring mental
disorder, especially when there are limited or no periods of
abstinence." Op. & Order at 19, ECF 19. I concluded
that when Dr. Rawlins' 2006 and 2007 opinions were fully
credited, Plaintiffs co-occurring metal disorder would not
improve to the point of nondisability when her alcoholism is
absent, and that therefore, her alcoholism is not a
contributing factor material to her disability, and remanded
the case for an immediate calculation of benefits.
prevailing party, Plaintiff filed the current application for
fees under the EAJA. The Commissioner concedes that its
position was not substantially justified, and the Court so
finds. 28 U.S.C. § 2412(d)(1)(A-B). As the prevailing
party, Plaintiff is entitled to a reasonable fee. The
Commissioner contends that the amount of fees should be
reduced because the amount is unreasonable and improperly
includes duplicative time.
award of attorney fees under the EAJA must be reasonable. 28
U.S.C. § 2412(d)(2)(A). The court has an independent
duty to review the fee requestto determine its
reasonableness. Hensley v. Eckerhart, 461 U.S. 424,
433 (1983); Costa v. Comm'rSoc. Sec. Admin., 690
F.3d 1132, 1135 (9th Cir. 2012); Moreno v. City of
Sacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). The
starting point for a reasonable fee is the "lodestar
method" or, the number of hours expended multiplied by a
reasonable hourly rate. Hensley, 461 U.S. at 434.
Counsel for the prevailing party should exercise good billing
judgment, and eliminate from fee requests hours that are
'"excessive, redundant, or otherwise
unnecessary' as a lawyer in private practice would
do." Costa, 690 F.3d at 1135 (quoting
Hensley, 461 U.S. at 434; Moreno, 534 F.3d
applicant bears the burden of documenting the appropriate
hours expended in the litigation and must submit evidence in
support of those hours worked. See Gonzalez v. City of
Mayivood, 729 F.3d 1196, 1202 (9th Cir. 2013). The party
opposing the fee request has the burden of rebuttal which
requires the submission of evidence to challenge the accuracy
and reasonableness of the hours charged. Gates v.
Deiikmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992).
Where documentation is inadequate, the court may reduce the
requested award. Hensley, 461 U.S. at 433-34.
amount of the fee award must be determined on the facts of
each case. Hensley, 461 U.S. at 429. Assessing
whether an attorney has spent a reasonable amount of time on
a case "will always depend on case-specific factors
including, among others, the complexity of the legal issues,
the procedural history, the size of the record, and when
counsel was retained." Costa, 690 F.3d at 1136.
While a court may not adopt defacto policy of
restricting EAJA awards in social security cases to 40 hours
or less, courts may consider EAJA awards in other cases as
one of many factors in evaluating the reasonableness of a fee
request, provided they explain why the amount of time
requested for a particular task is too high. Id. The
court may consider the fact that 20 to 40 hours is the range
most often requested in social security cases, but the court
may not limit attorney fee requests to 20 to 40 hours in
"routine" cases. Id. See also Stearns v.
Colvin, Case No. 3;14-cv-05611-JRC, 2016 WL 730301, *4
(W.D. Wash. Feb. 24, 2016) (reducing award by 10 hours to
account for excessive time spent on case given complexity of
issues and length of administrative record). A district court
has "substantial discretion in fixing the amount of an
EAJA award." Comm'r, INS v. Jean, 496 U.S.
154, 163 (1990).
Excessive Time. Inadequately Explained Entries, and Block
seeks a total of $15, 269.26 in attorney fees for 79.7 hours
expended broken down as follows: $190.28 per hour for 6.5
hours expended in 2015 (4.5 hours by attorney Tim Wilborn and
2 hours by attorney Ralph Wilborn), $191.70 per hour for 73.2
hours expended in 2016 and 2017 (9.7 hours by Tim Wilborn and
63.5 hours by Ralph Wilborn). In this case, the Commissioner
does not object to the hourly rate, and I note that ...