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Young v. Commissioner Social Security Administration

United States District Court, D. Oregon

February 24, 2017



          Malcolm F. Marsh United States District Judge

         On 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.


         Plaintiff 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 disability." Tr.415.

         After 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.

         On 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.

         As the 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.


         I. Standards

         An 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 at 1111.

         The fee 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.

         The 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).

         II. Excessive Time. Inadequately Explained Entries, and Block Billing

         Plaintiff 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 ...

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