United States District Court, D. Oregon
Merrill Schneider SCHNEIDER KERR LAW OFFICES Attorney for
J. Williams UNITED STATES ATTORNEY District of Oregon Janice
E. Hebert ASSISTANT UNITED STATES ATTORNEY Sarah L. Martin
SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the
General Counsel Social Security Administration Attorneys for
OPINION & ORDER
A. Hernandez, United States District Judge
Jeffrey Templeman brought this action seeking review of the
Commissioner's decision to deny his applications for
disability insurance benefits (DIB) and supplemental security
income (SSI). In an October 14, 2016 Opinion & Order, I
reversed the Commissioner's decision and remanded for
further administrative proceedings. Judgment was entered on
October 14, 2016.
now seeks an award of fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (EAJA). Defendant opposes
the motion, arguing that Plaintiff's fee request is
unreasonable. For the reasons explained below, I conclude
that the hours requested are reasonable. Therefore, I grant
seeks $6, 860.30 in fees. Defendant argues that the amount
requested is unreasonable because Defendant conceded error by
the ALJ, and Plaintiff's argument in his Reply Memorandum
arguing for a remand for benefits instead of a remand for
additional proceedings was unsuccessful. Thus, Defendant
contends that the 7.2 hours Plaintiff spent on the Reply
should be deducted from the amount sought.
courts assess the reasonableness of fee requests, including
EAJA requests in social security cases, using the
"lodestar" method. Costa v. Comm'r,
690 F.3d 1132, 1135 (9th Cir. 2012). "To
calculate the lodestar amount, the court multiplies 'the
number of hours reasonably expended on the litigation . . .
by a reasonable hourly rate.'" Id.(quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The
court then may adjust the lodestar upward or downward based
on "a host of reasonableness factors, including the
quality of representation, the benefit obtained . . ., the
complexity and novelty of the issues presented, and the risk
of nonpayment." Stetson v. Grissom, 821 F.3d
1157, 1166-67 (9th Cir. 2016) (internal quotation marks
omitted). Counsel for the prevailing party is expected to
"exercise 'billing judgment' to 'exclude
from a fee request 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).
social security case, the determination of how much time an
attorney can reasonably spend 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."
Id. at 1136. Because "lawyers are not likely to
spend unnecessary time on contingency fee cases" due to
the uncertainty of payment, "courts should generally
defer to the winning lawyer's professional judgment as to
how much time he was required to spend on the case."
Id. (internal quotation marks omitted).
the Commissioner agreed that the ALJ erred, the decision to
remand for benefits or additional proceedings is assessed
under a three-part test and ultimately rests in the
discretion of the Court. See Treichler v.
Comm'r, 775 F.3d 1090, 1100 (2014)
("credit-as-true" rule has three steps); Franke
v. Colvin, No. 6:14-CV-01903-AC, 2015 WL 7733464, at *2
(D. Or. Nov. 9, 2015) (decision whether to remand for
additional proceedings or for an award of benefits is a
decision within the discretion of the court) (citing
Harman v. Apfel, 211 F.3d 1172, 1177-78 (9th
Cir. 2000), adopted by J. Mosman, 2015 WL
7722416 (D. Or. Nov. 30, 2015). Making the appropriate remand
disposition often involves a substantive evaluation of the
ALJ's decision. That is, the concession of error does not
obviate the need for a thorough and substantive assessment of
the ALJ's decision. Typically, there are reasonable
arguments from both the Commissioner and the claimant
regarding whether the record is or is not fully developed,
whether further administrative proceedings would or would not
serve a useful purpose, and whether the ALJ would be required
to find the claimant disabled if improperly discredited
evidence is credited as true.
case, both Defendant and Plaintiff presented arguments on
these issues. While Defendant ultimately prevailed and
obtained a remand for additional proceedings, Plaintiff was
successful in obtaining a favorable decision on some issues.
For example, on the issue of whether the record was fully
developed on the adaptive functioning part of the Listing
12.05C analysis at Step Three, I agreed with Plaintiff. As a
result, this narrowed the issues to be considered on remand.
Although Plaintiff did not obtain the relief he requested,
his arguments in support of a remand for benefits were not
unreasonable. Accordingly, the 7.2 hours Plaintiff spent on
the Reply Memorandum are included as part of the EAJA award.
motion for EAJA fees  is granted. Plaintiff is awarded
attorney fees in the amount of $6, 860.30. Attorney fees
shall be awarded to Plaintiff's attorney, dependent upon
verification that Plaintiff has no debt which qualifies for
offset against the awarded fees, pursuant to the Treasury
Offset Program as discussed in Astrue v. Ratliff, 130
S.Ct. 2521 (2010).
Plaintiff has no such debt, then the check shall be made out
to Plaintiffs attorney and mailed to Plaintiffs
attorney's office as follows: Merrill Schneider, P.O. Box
14490, Portland, OR 97293. If Plaintiff has a debt, then the
check for any remaining funds after offset of the debt shall