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Janet N. v. Berryhill

United States District Court, D. Oregon

October 18, 2018

JANET N., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.

         This 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.[2]

         BACKGROUND

         Plaintiff 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.

         Plaintiff 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”).

         After 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.[3] 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 disabled.

         The Court entered judgment on May 16, 2018, remanding to the ALJ for an award of benefits. The Commissioner did not appeal.

         DISCUSSION

         I. LEGAL STANDARDS

         “The 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”).

         The 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)).

         II. REASONABLENESS OF REQUESTED FEES

         Plaintiff 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.[4] 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 transcript.

         A. ...


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