Kirker-Felo v. Commissioner of Social Security

Filing 33

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/21/2018 GRANTING 26 Motion for Attorney Fees. (Washington, S)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHERRY ANN KIRKER-FELO,

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No. 2:16-cv-0880-EFB

Plaintiff,
v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff moves for an award of attorneys’ fees and costs under the Equal Access to Justice

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Act (“EAJA”), 28 U.S.C. § 2412(d)(1). ECF No. 26. She seeks fees in the amount of $6,178.27

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based on 33.66 hours of work at a rate of $192.68 for work performed by attorney Jared Walker,

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plus $77.94 in costs. See ECF No. 27 ¶ 6; ECF No. 27-2. Plaintiff also seeks an additional

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$1,364.16 in fees based on 7.08 hours spent preparing the fee motion and reviewing and

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preparing a reply to defendant’s opposition to the motion, for a total amount of $7,620.37. ECF

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No. 31. Defendant agrees that plaintiff is entitled to attorney’s fees, but argues that the number of

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hours claimed is unreasonable and should be reduced accordingly. ECF No. 29.

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The EAJA directs the court to award a reasonable fee. 28 U.S.C. § 2412(d)(2)(A). In

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determining whether a fee is reasonable, the court considers the hours expended, the reasonable

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hourly rate and the results obtained. See Comm’r, INS v. Jean, 496 U.S. 154 (1990); Hensley v.

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Eckerhart, 461 U.S. 424 (1983); Atkins v. Apfel, 154 F.3d 986 (9th Cir. 1998). “[E]xcessive,
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redundant, or otherwise unnecessary” hours should be excluded from a fee award, and charges

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that are not properly billable to a client are not properly billable to the government. Hensley, 461

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U.S. at 434. An award of fees should be properly apportioned to pursuing the stages of the case

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in which the government lacked substantial justification.” Corbin, 149 F.3d 1053; Flores, 49

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F.3d at 566-71.

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Here, defendant does not object to plaintiff’s hourly rate, but contends that the number of

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hours expended by plaintiff’s counsel was unreasonable.1 ECF No. 29 at 3-5. Specifically,

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defendant argues that plaintiff’s counsel spent an excessive number of hours preparing his client’s

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motion for summary judgment. Defendant contends that the motion for summary judgment “was

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essentially a duplication of only two of the issues in the brief(s) Plaintiff’s administrative attorney

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filed before the administrative law judge and the Appeals Council.” Id. at 4. Defendant further

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argues that number of hours expended were unreasonable given that the motion did not contain a

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summary of the medical evidence, and its summaries of testimony and the ALJ’s findings were

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relatively brief. Id.

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Mr. Walker’s billing record show that he spent 26.3 hours reviewing the administrative

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record, conducting legal research, and preparing plaintiff’s motion for summary judgment. ECF

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No. 27-2. Of that time, 13.03 hours were dedicated to drafting the motion. Id. Although

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plaintiff’s brief was only 9 pages, the court cannot find that it was unreasonable for counsel to

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spend 13 hours briefing the two arguments raised in the motion, especially considering the

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outcome achieved in this case. See Moreno, 534 F.3d at 1112 (“By and large, the court should

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defer to the winning lawyer’s professional judgment as to how much time he was required to

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spend on the case; after all, he won, and might not have, had he been more of a slacker.”);

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Hensley, 461 U.S. at 435 (“Where a plaintiff has obtained excellent results, his attorney should

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recover a fully compensatory fee.”).

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Furthermore, the similarity between the arguments raised before the agency and those
briefed before this court does not justify a reduction in fees. Mr. Walker did not represent

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Defendant also does not object to the $77.94 in costs sought by plaintiff.
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plaintiff at the administrative level. Thus, he not only needed to independently review the record,

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but also needed to research current case law concerning potential arguments, including those

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raised by an another attorney before the agency. Indeed, it would have been imprudent for Mr.

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Walker to rely on former counsel’s arguments—arguments that were initially unsuccessful—

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without conducting his own research and review of the record.

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Defendant also argues that fee awards granted to Mr. Walker in other cases demonstrate

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that the fees sought in this case are excessive. ECF No. 29 at 5. Defendant contends that the

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amount of fees sought in this case are similar to those awarded in the nine other cases in which

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Mr. Walker has been awarded fees by this court, despite the fact that the brief filed in the instant

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action was Mr. Walker’s shortest. Accordingly, defendant contends “counsel should not be

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permitted to charge the same for this brief, which indeed, was much shorter than his norm, than

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he would for much more complicated, fully-litigated cases.” ECF No. 29 at 5.

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The time it takes to prepare a motion for summary judgment will vary from case to case.

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Indeed, “[s]ocial security cases are fact-intensive and require a careful application of the law to

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

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detail.” Id.; see also Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1134 n.1 (9th Cir.

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2012) (“[T]he term ‘routine’ is a bit of a misnomer as social security disability cases are often

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highly fact-intensive and require careful review of the administrative record, including complex

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medical evidence.”). Thus, the time required to prepare summary judgment motions, even those

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that are similar in length, may vary greatly depending on the facts of the case. Accordingly, the

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amount of time Mr. Walker spent successfully litigating other cases does not necessarily

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demonstrate that the time he spent preparing the motion for summary judgment in this action was

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unreasonable.

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Moreover, the number of hours expended by plaintiff's attorney is well within the limit of

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what would be considered a reasonable amount of time spent on this action when compared to the

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time devoted to similar tasks by counsel in like social security appeals coming before this court.

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See Boulanger v. Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19,

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2011) (finding 58 hours to be a reasonable amount of time); Watkins v. Astrue, No. CIV S-063

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1895 DAD, 2011 WL 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62 hours to be a

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reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, at *5

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(E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be a reasonable amount of time); Dean v. Astrue,

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No. CIV S-07-0529 DAD, 2009 WL 800174, at *2 (E.D. Cal. Mar. 25, 2009) (finding 41 hours to

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be a reasonable amount of time); see also Costa v. Commissioner of Social Sec. Admin., 690 F.3d

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1132, 1136 (9th Cir. 2012) (“Many district courts have noted that twenty to forty hours is the

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range most often requested and granted in social security cases.”); cf. id. at 1137 (“District courts

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may not apply de facto caps limiting the number of hours attorneys can reasonably expend on

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‘routine’ social security cases.”).

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Lastly, defendant contends, without elaboration, that plaintiff is not entitled to all fees

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requested for time spent discussing the language of the parties’ stipulation to remand the matter

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for further proceedings. ECF No. 29 at 5. Aside from noting that defense counsel drafted the

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stipulation, defendant provides no argument as to why plaintiff’s counsel is not entitled to

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compensation for time spent addressing this issue. Mr. Walker’s billing records indicate that he

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believed that the language proposed by defendant was overbroad and would result in a revocation

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of the ALJ’s partial award of benefits. Mr. Walker spent 1.79 hours discussing the issue with his

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client, conducting legal research, and communicating with defense counsel in an effort to resolve

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the dispute. There is nothing in the record to suggest that Mr. Walker’s concern was

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unreasonable, nor is there any indication that the 1.79 hours dedicated to this issue was excessive.

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Thus, there is no basis for reducing the number of hours spent addressing the issue.

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Accordingly, plaintiff’s counsel reasonably spent 33.66 hours litigating this action. The

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court has also reviewed Mr. Walker’s billing records concerning the time he spent litigating the

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fee application, including reviewing defendant’s opposition and preparing a reply brief, and finds

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that he reasonable spent 7.08 litigating the fee motion. See ECF No. 32-1 at 1-2. Thus, plaintiff

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is entitled to an additional award of $1,364.16 in attorney’s fees, for a total award of $7,620.

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III.

Conclusion

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for attorney’s fees and costs (ECF No. 26) is granted;

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2. Plaintiff is awarded attorney’s fees and costs under the EAJA in the amount of

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$7,620.37; and

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3. Pursuant to Astrue v. Ratliff, 560 U.S. 586 (2010), any payment shall be made payable

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to plaintiff and delivered to plaintiff’s counsel, unless plaintiff does not owe a federal debt. If the

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United States Department of the Treasury determines that plaintiff does not owe a federal debt,

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the government shall accept plaintiff’s assignment of EAJA fees and pay fees directly to

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plaintiff’s counsel.

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DATED: May 21, 2018.

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