United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.
matter comes before the Court on Janet N.'s
(“Plaintiff”) amended application pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412(d), for reimbursement of attorney's fees she
incurred in litigating her case. The Commissioner of the
Social Security Administration (“Commissioner”)
opposes Plaintiff's application on the ground that the
amount of fees Plaintiff requests is not reasonable. For the
reasons that follow, the Court grants in part Plaintiff's
amended application and awards Plaintiff her attorney's
fees in the amount of $15, 956.02.
applied for disability insurance benefits and supplemental
security income under Titles II and XVI of the Social
Security Act. She alleged that her ability to work was
limited by a variety of ailments, including fibromyalgia. An
Administrative Law Judge (“ALJ”) determined that
Plaintiff had the residential functional capacity
(“RFC”) to perform a modified version of light
exertion work, and that there were jobs existing in
sufficient numbers in the national economy that Plaintiff
could perform. The ALJ therefore concluded that Plaintiff was
not disabled and denied her applications for benefits.
Plaintiff timely appealed to federal district court.
filed a 35-page opening brief and 11-page reply brief on
appeal. In her opening brief, Plaintiff argued that the ALJ
erred by: (1) failing to provide clear and convincing reasons
for discounting Plaintiff's symptom testimony; and (2)
failing to provide legally sufficient reasons for discounting
the opinions of Plaintiff's examining physician, Dr.
Harry Krulewitch (“Dr. Krulewitch”), and treating
physicians, Drs. Patrick Rask (“Dr. Rask”) and
Robert Kaye (“Dr. Kaye”).
the reviewing the parties' briefs and the 1, 379-page
amended transcript, the Court issued a 37-page Opinion and
Order, wherein the Court concluded that the ALJ erred in
discounting Plaintiff's subjective symptom testimony and
the opinions of Drs. Krulewitch and Rask. The Court
reversed the Commissioner's decision and remanded for an
award of benefits because Plaintiff satisfied all three
conditions of the credit-as-true rule, and because the Court
did not have any serious doubt as to whether Plaintiff was
Court entered judgment on May 16, 2018, remanding to the ALJ
for an award of benefits. The Commissioner did not appeal.
EAJA provides for the award of attorney's fees to a party
that prevails against the United States in a proceeding for
review of an agency action, unless the court finds
‘that the position of the United States was
substantially justified or that special circumstances make an
award unjust.'” Costa v. Comm'r of Soc.
Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012)
(quoting 28 U.S.C. § 2412(d)(1)(A)). The Commissioner
does not assert that the agency's position was
substantially justified. Rather, the Commissioner asserts
only that the amount of fees Plaintiff requests is not
reasonable. See28 U.S.C. § 2412(d)(2)(A)
(explaining that for purposes of the EAJA, “fees and
other expenses, ” includes, among other things,
“reasonable attorney fees”).
Ninth Circuit has held that courts should apply the
“lodestar” method to determine a reasonable EAJA
fee award. See Costa, 690 F.3d at 1135
(“[W]hat is now called the ‘lodestar' method
. . . [should be applied] to determine what constitutes a
reasonable fee award under the EAJA.”). To calculate
the lodestar amount, “a district court must start by
determining how many hours were reasonably expended on the
litigation, ” Moreno v. City of Sacramento,
534 F.3d 1106, 1111 (9th Cir. 2008), and then multiply
“‘the number of hours reasonably expended on the
litigation by a reasonable hourly rate.”
Costa, 690 F.3d at 1135 (ellipses omitted) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
REASONABLENESS OF REQUESTED FEES
seeks 71.80 hours at an hourly rate of $196.79; 11.25 hours
at an hourly rate of $200.78; and 2.5 legal assistant hours
at an hourly rate of $90.00. The Commissioner does not object
to Plaintiff's proposed hourly rates. The Commissioner
does, however, object to the number of hours Plaintiff
asserts were reasonably expended on this litigation. To
determine how many hours were reasonable, courts assess
whether counsel for the prevailing party exercised
“billing judgment” and excluded hours that were
“excessive, redundant, or otherwise unnecessary as a
lawyer in private practice would do.” Costa,
690 F.3d at 1135 (quotation marks omitted) (citing
Hensley, 461 U.S. at 434). The Commissioner
challenges as excessive the number of hours Plaintiff spent
(1) on her opening brief; and (2) reviewing the case and