Duggan v. Astrue

Filing 33

ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY'S FEES by Judge William Alsup [granting in part and denying in part 29 Motion for Attorney Fees]. (whasec, COURT STAFF) (Filed on 12/6/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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CHRISTINE A. DUGGAN,
No. C 11-02176 WHA

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For the Northern District of California

United States District Court

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Plaintiff,
v.
ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF’S
MOTION FOR ATTORNEY’S FEES

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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INTRODUCTION

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In this social security appeal, plaintiff moves for attorney’s fees and expenses under the

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Equal Access to Justice Act. For the reasons stated below, plaintiff’s motion is GRANTED IN
PART.

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STATEMENT

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The facts have been set forth in a prior order (Dkt. No. 27). Briefly, this action was

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initially filed for disability benefits in March 2005. The administrative law judge found that

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plaintiff was not disabled despite having impairments of lumbar degenerative disc disease,

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polysubstance abuse in reported remission, and right upper extremity strain. After the appeals

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council denied plaintiff’s request for review, plaintiff filed an appeal here (Dkt. No. 27).

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Prior to the appeals council’s denial, plaintiff had filed a separate application for

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disability with Disability Determination Services Department, a state agency that determines

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disability for the Social Security Administration. The DDS physicians opined that plaintiff’s

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impairments were consistent with spinal impairments listed in Section 1.04A. The DDS

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estimated the date of plaintiff’s disability to be February 27, the day after the ALJ’s initial

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decision that plaintiff was not disabled, so as not to directly conflict with the ALJ’s

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determination of non-disability (Dkt. No. 27).

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Because of the inconsistencies between the ALJ and DDS determinations, the parties

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stipulated to remand. On the stipulated remand, the ALJ was tasked with reconciling its initial

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denial with the subsequent allowance by the DDS. The ALJ again found that plaintiff was not

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disabled between March 2003 and February 2007 (Dkt. No. 27).
Plaintiff again appealed. Again the action was remanded. Plaintiff now moves for

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For the Northern District of California

United States District Court

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attorney’s fees and expenses pursuant to the EAJA. Plaintiff seeks $12,111.36 in attorney’s fees

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and expenses. Defendant contends that fees and expenses should not be awarded because it was

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substantially justified in its conduct, or alternatively that the requested amount is excessive and

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unreasonable. This order follows briefing and a hearing. Plaintiff’s counsel failed to appear at

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the hearing.

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ANALYSIS

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The Equal Access to Justice Act provides in pertinent part that “a court shall award

ENTITLEMENT TO FEES AND EXPENSES.

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to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil

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action . . . including proceedings for judicial review of agency action, brought . . . against the

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United States . . . unless the court finds that the position of the United States was substantially

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justified or that special circumstances make an award unjust.” In order for a fee award to be

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granted, (1) a party must “prevail” in a civil action, and (2) the government’s position in the

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action, including the underlying administrative proceedings, must have been “not substantially

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justified.”

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A party “prevails” for the purposes of the EAJA if the denial of its benefits is reversed

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and remanded, regardless of whether benefits ultimately are awarded. Gutierrez v. BARNHART,

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274 F.3d 1255, 1257 (9th Cir. 2001). The government bears the burden of proving that its
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conduct was substantially justified. Our court of appeals has held that this standard is one of

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reasonableness, and the government must establish that its conduct “had a reasonable basis both

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in law and fact.” Sampson v. Chater, 103 F.3d 918, 921 (9th Cir. 1996).

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The government does not contest that plaintiff was a prevailing party for the purposes of

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the EAJA. The government so concedes and this order agrees that plaintiff was the prevailing

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party (because the government stipulated to a remand).

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The government, however, contends that plaintiff is not entitled to fees and expenses

remand the ALJ properly considered the evidence prior to February 2007 including evidence

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from the DDS physicians and the medical expert’s opinion. The government also argues that

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For the Northern District of California

because its position was substantially justified. The government argues that on the stipulated

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United States District Court

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it was substantially justified in defending the ALJ’s decision. This order disagrees.

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First, the ALJ did not adequately explain why plaintiff was non-disabled under

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Section 1.04A prior to February 27. This was required by the stipulated remand order to

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reconcile the inconsistencies in the evidence. This was a major issue because there were no

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medical reasons given for the DDS’ decision to commence benefits on February 27. It was

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simply the earliest date that benefits could commence due to the ALJ’s unfavorable February 26

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decision. Failure to adequately address this issue was erroneous (Dkt. No. 27).

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Second, the ALJ did not address Section 1.04A at all. This was surprising because

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the DDS physicians opined that plaintiff’s impairments medically equaled the disabling spinal

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impairment listed in Section 1.04A. “The ALJ’s lack of discussion regarding the DDS

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physicians’ clinical findings, shows that the ALJ did not adequately reconcile the DDS physician

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determination of disability . . .” (Dkt. No. 27).

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For the reasons mentioned above, the ALJ failed to follow the stipulated remand order

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to reconcile the inconsistencies in the evidence. This order finds that the government’s position

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was not substantially justified because the ALJ’s decision and the government’s defense thereof

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was not reasonably based in law and fact.

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Fees awarded pursuant to the EAJA must be reasonable. The party requesting the fee

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award bears the burden of proving that its request is reasonable. Any task that would not be

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billed to a client may not be billed to an adversary under the EAJA. “Excessive, redundant,

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or otherwise unnecessary” hours must be excluded. Hensley v. Ekerhart, 461 U.S. 424, 437

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(1983). Clerical tasks, even when performed by an attorney or paralegal, may not be billed to

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an adversary. Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989). Any fees awarded pursuant

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to the EAJA must be paid to the plaintiff, not to the plaintiff’s attorney. Astrue v. Ratliff,

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130 S. Ct. 2521, 2524 (2010).
Surveys of several dozen social security actions have been conducted to find an

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For the Northern District of California

United States District Court

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REASONABLENESS OF FEES AND EXPENSES.

appropriate range for hours billed. See Lobato v. Astrue, 2012 WL 3155699, *3 (N.D. Cal.

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Aug. 2, 2012) (Spero, J.) (Citing Patterson v. Apfel, 99 F. Supp. 2d 1212 (C.D. Cal. 2000)

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(Wistrich, J.)). The most appropriate range seems to be between twenty to forty hours billed

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in a standard social security action. Ibid. Additionally, an “in-house survey performed by

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Chief Judge Carl Rubin of the Southern District of Ohio and encompassing seven years of

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data . . . found that the average number of hours asserted in the fee petition was 37.3.” Ibid.

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(quotations omitted).

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The government contends that the amount sought for fees and expenses is unreasonable.

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Specifically, the government challenges the 74.8 hours billed by plaintiff’s counsel and not the

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hourly rate requested by plaintiff. The government also argues that the billed entries include

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clerical tasks which are not recoverable.

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It must first be noted that the government lumps together all attorney’s fees requested

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including those for the instant motion. This order finds that 67.6 hours were spent on the appeal

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action and 7.2 hours were spent on the instant motion requesting EAJA fees. This order first

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addresses the hours billed for the appeal action and then the hours billed for the instant motion.

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The break-down of the 67.6 hours billed for the appeal action is as follows: 54.9 hours

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attorney time, 10 hours law clerk time and 2.7 hours administrative time. This action was not so

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complicated or difficult to justify 67.6 hours. The hours billed are well over the upper limit

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of the standard twenty to forty hour range. The 54.9 attorney hours alone are beyond this range.

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This order finds that forty hours was the time this case deserved. These hours will

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be attributed completely to attorney work because the attorney work exceeded forty hours.

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Moreover, defendant’s argument regarding unbillable clerical tasks is now moot because

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the attorney work was largely free of clerical tasks. The majority of the clerical tasks were

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billed by the law clerk, whose hours will not be billed for the appeal action.

As stated previously, 54.9 attorney hours were billed for the appeal action (47.3 attorney hours

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in 2011 and 7.6 attorney hours in 2012). This order adjusts the total hours to 35 hours for 2011

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For the Northern District of California

The attorney’s fees will be calculated by adjusting the total hours down to forty.

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United States District Court

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and five hours for 2012, which is fairly consistent with how the hours were billed in each year.

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The attorney’s fees award for the appeal action, as adjusted, is as follows: $6,320.65 for 2011

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(35 hours at $180.59/hour) and $918.65 for 2012 (five hours at $183.73/ hour).

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Additionally, plaintiff is entitled to attorney’s fees for the instant motion. This order

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finds the attorney’s fees for the instant motion to be $825.36 (six law clerk hours at $110 and

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.9 attorney hours at $183.73). The .3 administrative hours billed by the law clerk is excluded

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as clerical work.

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Plaintiff is also entitled to $2.36 in expenses for postage. Int'l Woodworkers of Am.,

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AFL-CIO, Local 3-98 v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985). Accordingly, plaintiff is

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awarded $8,064.66 in attorney’s fees and $2.36 in expenses.

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CONCLUSION
For the reasons mentioned above, plaintiff’s motion is GRANTED IN PART with respect to

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$8,064.66 in attorney’s fees and $2.36 in expenses and DENIED IN PART with respect to the

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remainder of plaintiff’s request. Defendant shall pay the award amount directly to plaintiff.

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IT IS SO ORDERED.
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Dated: December 6, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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