Henderson v. Colvin

Filing 58

ORDER granting 52 Plaintiff Jeffrey Belden Henderson's motion for attorney's fees under the Equal Access to Justice Act ("EAJA"). Plaintiff is awarded $17,702.10 pursuant to the Equal Access to Justice Act. FURTHER ORDERED that this award shall be payable to Plaintiff and is subject to offset to satisfy any pre-existing debt that Plaintiff owes the United States pursuant to Astrue v. Ratliff, 560 U.S. 586, 594 (2010). Signed by Magistrate Judge Michelle H Burns on 1/22/18. (EJA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14

)
)
)
Plaintiff,
)
)
vs.
)
Nancy A. Berryhill, Commissioner of the)
)
Social Security Administration,
)
)
Defendant.
)
Jeffrey Belden Henderson,

CIV 13-1830-PHX-MHB
ORDER

15

Pending before the Court is Plaintiff Jeffrey Belden Henderson’s motion for attorney’s

16

fees under the Equal Access to Justice Act (“EAJA”) (Doc. 52). After reviewing the

17

arguments of the parties, the Court now issues the following ruling.

18

In July 2010, Plaintiff filed applications for disability insurance benefits and

19

supplemental security income alleging disability beginning in July 2009. Plaintiff’s onset

20

date was later amended to April 7, 2010. Plaintiff’s claims were denied initially and on

21

reconsideration. Thereafter, Plaintiff requested a hearing before an administrative law judge,

22

and a hearing was held on May 15, 2012. Afterwards, the ALJ issued a decision finding that

23

Plaintiff was not disabled. The Appeals Council denied Plaintiff’s request for review, and

24

Plaintiff then sought judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).

25

This Court, after reviewing the administrative record and the arguments of the parties,

26

reversed the decision of the ALJ, finding that the ALJ did not properly weigh medical source

27

opinion evidence, and did not support his decision to discredit Plaintiff’s reported limitations

28

1

with specific, clear and convincing reasons. The Court remanded the case to the

2

Commissioner for further administrative proceedings to allow the ALJ to set forth

3

sufficiently clear explanations for his weighing of the medical source evidence and to support

4

his credibility assessment of Plaintiff. Thereafter, Plaintiff appealed the Court’s decision to

5

the Ninth Circuit Court of Appeals.

6

The Ninth Circuit, subsequently, issued its Mandate, reversing the judgment of the

7

district court and instructing it to remand the case to the agency to calculate and award

8

benefits.

9

The EAJA allows “a prevailing party other than the United States fees and other

10

expenses ... incurred by that party in any civil action ... unless the court finds that the position

11

of the United States was substantially justified or that special circumstances make an award

12

unjust.” 28 U.S.C. § 2412(d)(1)(A). An applicant for disability benefits becomes a prevailing

13

party for the purposes of the EAJA if the denial of her benefits is reversed and remanded

14

regardless of whether disability benefits are ultimately awarded. See Shalala v. Schaefer, 509

15

U.S. 292, 300-02 (1993).

16

The “position of the United States” includes both its litigating position and the “action

17

or failure to act by the agency upon which the civil action is based.” 28 U.S.C. §

18

2412(d)(2)(D). For this position to be substantially justified, it must be “justified in substance

19

or in the main – that is, justified to a degree that could satisfy a reasonable person.” Pierce

20

v. Underwood, 487 U.S. 552, 565 (1988) (holding that substantially justified means having

21

a reasonable basis both in law and fact). In EAJA actions, the government bears the burden

22

of proving that its position was substantially justified. See Gonzales v. Free Speech

23

Coalition, 408 F.3d 613, 618 (9th Cir. 2005). However, “the government’s failure to prevail

24

does not raise a presumption that its position was not substantially justified.” Kali v. Bowen,

25

854 F.2d 329, 332 (9th Cir. 1988).

26

When analyzing the government’s position for substantial justification, the Court’s

27

inquiry should be focused on the issue that was the basis for remand and not the merits of

28

Plaintiff’s claim in its entirety or the ultimate disability determination. See Flores v. Shalala,
-2-

1

49 F.3d 562, 569 (9th Cir. 2008); see also Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir.

2

1998) (“The government’s position must be substantially justified at each stage of the

3

proceedings.”).

4

Plaintiff moves for an award of attorney’s fees under the EAJA in the amount of

5

$17,702.10. Defendant opposes Plaintiff’s request. Defendant does not argue that the

6

government’s position was substantially justified – rather Defendant contends that the

7

amount of fees requested by Plaintiff is unreasonable.

8

The Court will determine whether the requested fees are reasonable. Plaintiff requests

9

attorney’s fees in the amount of $17,702.10. The attorney’s fees amount represents the 5.3

10

hours of work in 2013 (at $187.02/hour), the 49.7 hours of work in 2014 (at $190.06/hour),

11

the 24.0 hours of work in 2015 (at $190.28/hour), the 7.8 hours of work in 2016 (at

12

$192.68/hour), and the 6.1 hours of work in 2017 (at $195.95/hour) by Plaintiff’s counsel on

13

the instant matter.

14

The Commissioner argues that the amount of fees awarded should be reduced because

15

the amount requested is excessive and unreasonable. Citing to a 2012 case, a 2007 case, and

16

a 2005 case, Defendant refutes the time spent on this matter in district court and argues “this

17

Court has typically found a much lower amount of attorney hours reasonable for work before

18

it, usually in the range of 30 to 40 hours.” Defendant states that “[n]othing about this case

19

justifies such a high award. The record was of average size (708 pages), and Plaintiff raised

20

only two points of error in her 20-page opening brief to this Court (regarding Plaintiff’s

21

treating physician’s opinion and his symptom testimony).”

22

Defendant additionally contends that the “hours of attorney time spent drafting his

23

36-page Opening Appellate Brief” was unreasonable given that “his opening appellate brief

24

recycled more than half of its language from both his district court brief and previous briefs

25

Plaintiff’s attorney had filed in the Court of Appeals.”

26

Defendant concludes stating that “given the evidence of excessive and unreasonable

27

billing outlined above, the Court would be justified in reducing its EAJA award to Plaintiff.

28
-3-

1

The Commissioner requests that the Court reduce any EAJA award by 30% of the hours

2

requested by Plaintiff, for a total of no more than $12,117.14.”

3

“Social security cases are fact-intensive and require a careful application of the law

4

to the testimony and documentary evidence, which must be reviewed and discussed in

5

considerable detail.” Patterson v. Apfel, 99 F.Supp.2d 1212, 1213 (C.D. Cal. 2000). As such,

6

“[t]his Court will not second-guess counsel about the time necessary to achieve a favorable

7

result for his client.” Kling v. Sect’y of Dept. of Health & Human Servs., 790 F.Supp. 145,

8

152 (N.D. Ohio 1992). However, if the requested fees are not shown to be reasonable, then

9

the Court may reduce the award. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“It

10

remains for the district court to determine what fee is ‘reasonable.’”); Atkins v. Apfel, 154

11

F.3d 986, 988 (9th Cir. 1998) (applying Hensley to cases involving the EAJA). Thus, “[t]he

12

district court should exclude from [the] initial fee calculation hours that were not ‘reasonably

13

expended[,]’ ... [and] hours that are excessive, redundant, or otherwise unnecessary.”

14

Hensley, 461 U.S. at 434.

15

Although Defendant provides some authority from other social security cases and

16

suggests that the fee amount requested in this case be slashed by 30% based on those cases,

17

the arguments advanced by Defendant are based on Defendant’s own general opinion – and

18

fail to address any of the particular services performed in this case necessary to achieve the

19

desired result. Further, “[o]ne certainly expects [some] degree of duplication as an inherent

20

part of the process. There is no reason why the lawyer should perform this necessary work

21

for free.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

22

Here, the Court will not second-guess Plaintiff’s counsel regarding the time expended

23

to achieve a favorable result. See Kling, 790 F.Supp. at 152. The Court finds that Plaintiff’s

24

counsel’s billed time is reasonable and, therefore, the Court will award Plaintiff attorney’s

25

fees in the amount of $17,702.10.

26

Accordingly,

27

IT IS ORDERED that Plaintiff Jeffrey Belden Henderson’s motion for attorney’s

28

fees under the Equal Access to Justice Act (“EAJA”) (Doc. 52) is GRANTED;
-4-

1
2

IT IS FURTHER ORDERED that Plaintiff is awarded $17,702.10 pursuant to the
Equal Access to Justice Act;

3

IT IS FURTHER ORDERED that, this award shall be payable to Plaintiff and is

4

subject to offset to satisfy any pre-existing debt that Plaintiff owes the United States pursuant

5

to Astrue v. Ratliff, 560 U.S. 586, 594 (2010).

6

DATED this 22nd day of January, 2018.

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-