Khan v. Commissioner of Social Security

Filing 24

ORDER by Magistrate Judge Jacqueline Scott Corleygranting in part 21 Motion for Attorney Fees. (ahm, COURT STAFF) (Filed on 10/11/2019)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 YVONNE MARIA KHAN, 7 Plaintiff, 8 COMMISSIONER OF SOCIAL SECURITY, 10 United States District Court Northern District of California 11 Re: Dkt. Nos. 21, 22, 23 Defendant. 12 14 ORDER RE: PLAINTIFF’S MOTION FOR ATTORNEY'S FEES v. 9 13 Case No.18-cv-02868-JSC In this Social Security case, Plaintiff Yvonne Khan (“Plaintiff”) seeks attorney’s fees under the Equal Access to Justice Act (“EAJA”) following this Court’s remand of her disability insurance benefits case. (Dkt. Nos. 19 & 21.)1, 2 Because the Social Security Commissioner 15 (“Defendant”) does not contest the substantial justification of the original action and instead 16 challenges only the amount of fees sought, Plaintiff’s motion is GRANTED in part, as explained 17 below. 18 BACKGROUND 19 20 21 22 23 24 This case stems from Plaintiff’s appeal of the Social Security Administration’s (“SSA”) denial of her application for disability benefits for a combination of physical and mental impairments, including: degenerative disc disease, fibromyalgia, knee and shoulder problems, hand and wrist condition, bone spurs, and depression. (See Dkt. Nos. 1 & 19 at 1.) On June 3, 2019, the Court granted Plaintiff’s motion for summary judgment, denied Defendant’s crossmotion for summary judgment, and remanded for further administrative proceedings, concluding 25 26 27 28 Record citations are to materials in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of the documents. 2 Plaintiff and Defendant have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). (Dkt. Nos. 8, 9.) 1 1 1 that the Administrative Law Judge (“ALJ”) must adequately consider medical and testimonial 2 evidence in light of Plaintiff’s fibromyalgia and reassess Plaintiff’s residual functioning capacity. 3 (Dkt. No. 19.) Plaintiff then filed the underlying motion for EAJA fees in the amount of 4 $8,413.60. (Dkt. No. 21 at 2.) Plaintiff requested an additional $400 for costs, $21.68 for 5 expenses, and $674.00 (rounded from the requested $674.025) for the time spent drafting the 6 reply. (Dkt. Nos. 21 at 2 & 23 at 10.) 7 8 LEGAL STANDARD Under the EAJA, a court shall award a prevailing party its fees and expenses in an action against the United States unless “the position of the United States was substantially justified or 10 special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The Supreme Court 11 United States District Court Northern District of California 9 has defined “substantially justified” as “justified in substance or in the main–that is, justified to a 12 degree that could satisfy a reasonable person,” or having a “reasonable basis both in law and fact.” 13 Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government bears the burden of establishing 14 substantial justification. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 15 If the government’s position was not substantially justified, then the plaintiff may be 16 eligible for an award of fees under the EAJA; however, eligibility is not an automatic award. 17 Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). Rather, the plaintiff must prove that the fees 18 sought are reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001) (“The burden is on 19 the plaintiff to produce evidence that the requested rates are in line with those prevailing in the 20 community for similar services by lawyers of reasonably comparable skill, experience, and 21 reputation.”) (internal quotation marks omitted). 22 The starting point for determining whether a fee is reasonable is “the number of hours 23 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. 24 Eckerhart, 461 U.S. 424, 433 (1983). The applicant must exercise “billing judgment,” i.e., the 25 fees must be for services for which a private client would pay. Id. at 434 (“Hours that are not 26 properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory 27 authority.”). Courts should generally “defer to the winning lawyer’s professional judgment as to 28 how much time he was required to spend on the case.” Moreno v. City of Sacramento, 534 F.3d 2 1 1106, 1112 (9th Cir. 2008). An applicant may be awarded fees for hours spent litigating an EAJA 2 fee award. INS v. Jean, 496 U.S. 154, 162 (1990). 3 DISCUSSION 4 Plaintiff moves for a total fee award of $9,087.60, plus $400 for costs and $21.68 for 5 expenses. (Dkt. No. 23 at 10.) Defendant does not contend that its position here was substantially 6 justified. Plaintiff is therefore entitled to an award as a prevailing party under 28 U.S.C. § 7 2412(d.) See Gutierrez, 274 F.3d at 1258 (“It is the government’s burden to show that its position 8 was substantially justified.”). The only disputes between the parties are whether the fees requested 9 are reasonable, including whether Plaintiff is entitled to fees related to her reply brief, and whether 10 United States District Court Northern District of California 11 the fees can be awarded directly to Plaintiff’s counsel. A. Reasonableness of Fees 12 When awarding a party attorneys’ fees pursuant to the EAJA, the Court must determine the 13 reasonableness of the fees sought. Sorenson, 239 F.3d at 1145. In establishing the reasonableness 14 of fees and expenses under EAJA, it is Plaintiff’s burden to document “the appropriate hours 15 expended in the litigation by submitting evidence in support of those hours worked.” Gates v. 16 Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). As previously discussed, the appropriate 17 number of hours includes all time “reasonably expended in pursuit of the ultimate result achieved, 18 in the same manner that an attorney traditionally is compensated by a fee-paying client for all time 19 reasonably expended on a matter.” Hensley, 461 U.S. at 431. 20 Here, Plaintiff submits her attorney’s affirmation in support of fees with five exhibits, the 21 first three of which break down the time spent on the case. (Dkt. No. 21 at 4-21.) Exhibit A 22 details the time spent by all who worked on the case in chronological order. (Id. at 5, 9-10.) 23 Exhibit B breaks down the work on the case by attorney. (Id. at 5, 12-13.) Exhibit C breaks down 24 the work by each paralegal. (Id. at 5, 15.) Plaintiff’s counsel also sets forth the requested hourly 25 rates for attorney time and paralegal time. (Id. at 5.) There does not appear to be a dispute as to 26 the hourly rates of the attorneys or the paralegals; rather, Defendant disputes the fees in general as 27 unreasonable and “too high,” arguing that: (1) Plaintiff claims hours at both paralegal and attorney 28 rates for tasks that were “clerical or secretarial in nature,” (2) Plaintiff “plainly overbills for some 3 1 tasks,” (3) the block billing “almost certainly inflates her claimed hours,” and (4) the multiple 0.1 2 hour entries “unwarrantedly increase the total time billed.” (Dkt. No. 22 at 4-6.) The Court 3 addresses each argument in turn, and agrees that some of Plaintiff’s requested time is 4 unreasonable. As discussed below, the Court concludes that Plaintiff is entitled to $8,506.16 in 5 fees. 6 7 1. “Clerical or Secretarial” Tasks Defendant first contends that Plaintiff claims hours at both paralegal and attorney rates for 8 tasks that were “clerical or secretarial in nature.” (Dkt. No. 22 at 4.) “[P]urely clerical or 9 secretarial tasks should not be billed at a paralegal rate, regardless of who performs them.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). “When clerical tasks are billed at 11 United States District Court Northern District of California 10 hourly rates, the court should reduce the hours requested to account for the billing errors.” 12 Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). This Court has previously noted that 13 “[t]asks such as preparing proofs of service, processing records, posting letters for mail, 14 photocopying, three-hole punching, internal filing, calendaring, and preparing the summons and 15 complaint for filing have been found to be purely clerical tasks for which fees are not 16 recoverable.” Reenders v. Premier Recovery Grp., No. 18-cv-07761-PJH (JSC), 2019 WL 17 2583595, at *7 (N.D. Cal. May 7, 2019) (citing Borillo v. Legal Recovery Law Offices, Inc., No. 18 5:16-cv-05508-HRL, 2017 WL 1758088, at *6 (N.D. Cal. May 5, 2017)). 19 Here, Defendant points to 17 time entries that are, or contain, allegedly clerical tasks that 20 are not reimbursable. (See Dkt. Nos. 21 at 9-10 & 22 at 4-5.) Of these 17 tasks, the Court agrees 21 that nine are non-compensable, purely secretarial tasks; specifically, the entries on May 15, 2018 22 (federal forms packet prepared for client completion (0.6); FDC packet sent (0.2); FDC pack 23 returned (0.3); filing fee payment received (0.1)); May 16, 2018 (preparing summons (0.6)); May 24 25, 2018 (file via ECF (0.2)); July 30, 2018 (“Note Reminder to counsel re: Case number when 25 filing” (0.1)); and August 23, 2018 (receipt of answer and notice of service of transcript (0.1); 26 generated PDF of court transcript (1.8)). (See Dkt. No. 21 at 9.) 27 Plaintiff counters that tasks that are not “purely clerical” and which are routinely 28 performed by attorneys should be reimbursable. (Dkt. No. 23 at 4 (citing Rabadi v. Astrue, No. 4 1 EDCV 03-00774-MAN, 2012 WL 13167630, at *5 (C.D. Cal. Nov. 8, 2012)).) Agreed. But the 2 tasks the Rabadi court found were not purely clerical are different from the tasks the Court has 3 found as stated above were clerical. 4 5 6 7 Because some of the time billed is clerical and thus not recoverable, the Court reduces the amount of compensable time by 4.0 hours ($568.94). 2. Overbilling Defendant also contends that “Plaintiff plainly overbills for some tasks,” pointing to two 8 tasks in particular, the 0.3 hours spent reviewing a summons (May 18, 2018) and the 0.3 hours for 9 “Federal Court-Remand Referral back to Referral Source” (June 6, 2019). (Dkt. No. 22 at 5.) Defendant does not identify any other instances of overbilling but indicates there are more. (Id.) 11 United States District Court Northern District of California 10 While Plaintiff counters that Defendant fails to explain how these two examples constitute 12 overbilling, Defendant relies on Mallard wherein the court found 0.2 hours for reviewing a 13 summons unreasonable, and where it found 0.3 hours spent referring the action “back to Referral 14 Source” overbilling. (See Dkt. No. 22 at 5 (citing Mallard v. Berryhill, No. 1:17-cv-01212 – JLT, 15 2019 WL 2389506, at *4 (E.D. Cal. Jun. 6, 2019)).) 16 In Mallard, the court found the 0.1 hours spent consenting to a magistrate judge to 17 constitute overbilling, saying it “is a simple check-box form that would take mere moments to 18 review,” Mallard, 2019 WL 2389506, at *4. While the same task is logged here at the same 19 amount of time, the Court disagrees that 0.1 hours is excessive. (See Dkt. No. 21 at 9). 20 Consenting to a magistrate judge requires the attorney for the party, or the party themselves if pro 21 se, to read, check, and sign the consent form that is then submitted to the court. (See Dkt. Nos. 8 22 & 9.) The Court finds that six minutes is not unreasonable for an attorney to read, check, and sign 23 the magistrate judge consent form and, thus, declines to reduce the hours expended on this task. 24 The Mallard court similarly found the 0.3 hours spent with the referral source to constitute 25 overbilling, saying only “it is unclear why referring the action ‘back to Referral Source’ after the 26 Court’s remand order would take 0.3 hour.” Mallard, 2019 WL 2389506, at *4. Here, absent 27 further detail, the Court finds the time spent with the referral back source to be excessive and 28 awards only 0.2 hours for the task, which is a reasonable amount of time. 5 1 While the Mallard court reduced the remaining time reported by ten percent to account for 2 overbilling and block billing, here, a ten percent cut is not warranted absent pervasive block 3 billing and overbilling issues like those found in Mallard. See Mallard, 2019 WL 2389506, at *4. 4 Rather, the Court will only reduce the time on the above-mentioned task, awarding 0.2 hours for 5 the referral source task. The 0.3 hours spent reviewing the summons was resolved in the prior 6 section and the 0.1 hour spent consenting to the magistrate judge has been resolved in this section. 7 8 9 Accordingly, the Court deducts 0.1 hours ($12.50) for the one overbilled task. 3. Block Billing Defendant contends that “Plaintiff’s block billing throughout almost certainly inflates her claimed hours.” (Dkt. No. 22 at 5.) Defendant does not indicate which specific entries he takes 11 United States District Court Northern District of California 10 issue with and instead cites cases where courts have looked unfavorably on block billing. (See id.) 12 Defendant cites Role Models America, Inc. v. Brownlee wherein the court found the block 13 billing of sometimes unrelated tasks hindered the ability to evaluate reasonableness. (See Dkt. No. 14 22 at 5 (citing Role Models America, Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004)).) 15 Unlike in Role Models, however, here the task entries rarely appear to lump together multiple 16 tasks, and those that do are clearly related and pertain to one task within the case, such as October 17 17, 2018 when Stuart Barasch (Attorney) reviewed co-counsel’s brief, implemented final edits, 18 and filed. (See generally Dkt. No. 21 at 9-10.) The Court notes that in Mallard v. Berryhill, the 19 court expressed concern over block billing entries that contained compensable and clerical tasks. 20 2019 WL 2389506, at *4. While Defendant fails to point to any specific entry, the two instances 21 where Plaintiff’s counsel’s purported block billing does contain a clerical task (i.e., filing), the 22 total time spent was a mere 0.2 and 0.3 hours, neither of which seems unreasonable for time spent 23 reviewing and editing a brief, plus filing it. (Dkt. No. 21 at 10 (10/17/2018; 11/26/2018).) 24 Further, Plaintiff’s counsel’s time sheet includes multiple entries per day and either bills the time 25 at 0.00 hours for clerical work performed or, according to Plaintiff, does not include the time. 26 (See Dkt. Nos. 21 at 6 & 23 at 6.) 27 28 The Court finds the billing descriptions have not hampered the Court’s ability to evaluate the reasonableness of the time billed and, thus, declines to reduce the hours sought for block 6 1 billing. 2 3 4. 0.1 Hour Entries Defendant last contends that Plaintiff’s multiple 0.1 hour billing entries “unwarrantedly 4 increase the total time billed.” (Dkt. No. 22 at 6.) While it is true that Plaintiff records ten “0.1” 5 hour time entries, (see Dkt. No. 21 at 9-10), three of these ten have been resolved above, leaving 6 seven 0.1 hour entries at issue. Plaintiff notes that there are more tasks logged at 0.0 hours than 7 there are at 0.1 hours, casting doubt on Defendant’s argument that the multiple “perfunctory” tasks 8 logged at 0.1 hours “unwarrantedly increase” the total time billed. (See Dkt. Nos. 21 at 9-10, 22 at 9 6, 23 at 5-6.) Defendant cites to Lopez v. Astrue wherein the court reduced the total time for multiple 0.1 11 United States District Court Northern District of California 10 hour entries, saying, “While the Court appreciates that counsel needs to review the docket and this 12 court’s orders, the total amount billed is excessive when each amount it recorded as a discrete six- 13 minute event.” Lopez v. Astrue, No. 1:10-cv-1012 AWI GSA, 2012 WL 2052146, at *2 (E.D. Cal. 14 Jun. 6, 2012) (emphasis added) (citing Downey v. Astrue, No. 1:09–cv–812 SKO, 2001 WL 15 12505824, at *12-13 (E.D. Cal. Apr. 11, 2012)). There, seven 0.1 hour entries were recorded for 16 tasks such as “reviewing court docket,” “reviewing court documents,” “reviewing defendant’s 17 consent to magistrate”, and “reviewing return receipt.” Id. 18 Lopez does not persuade the Court that a reduction is required for multiple 0.1 entries. The 19 Lopez entries there were either vague (“reviewing court documents on 6/8/10”) or multiple entries 20 were made for perfunctory tasks such as reviewing the docket (“.1 hours reviewing court docket 21 entry on 6/3/10”; “0.1 hours reviewing the docket on 6/29/10”) or reviewing return receipts (“0.1 22 hours reviewing return receipt on 7/14/10”; “0.1 hours reviewing return receipt on 7/16/10”). 23 Lopez, 2012 WL 2052146, at *2. Here, unlike Lopez, the remaining 0.1-hour entries left at issue 24 include, on May 25, 2018, “Review summons issued as to Commissioner, USAO, and AG,” or, on 25 August 27, 2018, “Review order reassigning case to MJ Corley-Judge Rogers no longer assigned.” 26 (Dkt. No. 21 at 9-10.) (Dkt. No. 21 at 9-10.) The 0.1 hour tasks left here are specific and 27 substantive such that they are often handled by attorneys and, accordingly, do not unwarrantedly 28 increase the total time. 7 1 2 Thus, the Court will not reduce the compensable hours on this basis. 5. Plaintiff is Entitled to Fees for Preparing the Reply Brief 3 Under the EAJA, a prevailing party is entitled to fees incurred in litigation with the 4 government in moving for an EAJA fee award. Jean, 496 U.S. at 161; see also Love v. Reilly, 924 5 F.2d 1492, 1487 (9th Cir. 1991). Plaintiff’s request for $674.00 (rounded) for the 3.3 additional 6 hours spent drafting the underlying reply brief is reasonable and on par with, or less than, what 7 this Court and others have granted in similar cases. See, e.g., Valle v. Berryhill, No. 16-cv-02358- 8 JSC, 2018 WL 1449414, at *3 (N.D. Cal. Jan. 18, 2018) (awarding $1910.51 for 9.75 additional 9 hours preparing the reply brief); Potter v. Colvin, No. 14-cv-02562-JSC, 2015 WL 7429376, at *4 (N.D. Cal. Nov. 23, 2015) (awarding $569.04 for three hours of work preparing the reply brief); 11 United States District Court Northern District of California 10 Lauser v. Colvin, No. 13-05990-MEJ, 2015 WL 1884330, at *5 (N.D. Cal. Apr. 23, 12 2015) (awarding $1,110.21 for fees for preparing the reply brief); Smith v. Astrue, No. C 10–4814 13 PJH, 2012 WL 3114595, at *5 (N.D. Cal. July 31, 2012) (granting fees for 2.6 hours of work spent 14 preparing the reply brief on the fees motion). 15 16 17 *** Accordingly, the Court awards Plaintiff $8,506.16 in attorneys’ fees. B. The Fee Award Should Be Paid Directly to Counsel 18 As previously discussed, under the EAJA “a court shall award to a prevailing party . . . fees 19 and other expenses . . . incurred by that party in a civil action (other than cases sounding in tort) . . 20 . unless the court finds that the position of the United States was substantially justified.” 28 21 U.S.C. § 2412(d)(1)(A). In Astrue v. Ratliff, 560 U.S. 586, 594 (2010), the Supreme Court 22 considered this provision of the EAJA and whether it makes a fee payable to the prevailing party 23 or the attorney. The Supreme Court noted the absence of language in the EAJA explicitly 24 directing fees to attorneys and compared EAJA with a provision in the Social Security Act making 25 fee awards payable “to such attorney.” Id. at 595 (citing 42 U.S.C. § 406(b)(1)(A)). In so doing, 26 the Court concluded that “given the stark contrast between the SSA’s express authorization of 27 direct payments to attorneys” and the absence of such language in EAJA, it would not interpret 28 EAJA to “contain a direct fee requirement [to the attorney] absent clear textual evidence 8 1 2 supporting such an interpretation.” Id. at 595. Courts in this District have nonetheless concluded that Ratliff does not prevent payment of 3 a fee award directly to the attorney if there has been a valid assignment and the plaintiff does not 4 owe a debt to the government. See Hampton v. Colvin, No. 13-CV-04624-MEJ, 2015 WL 5 1884313, at *7 (N.D. Cal. Apr. 23, 2015); Yesipovich v. Colvin, No. 15-00112-WHA, 2015 WL 6 5675869, at *8 (N.D. Cal. Sept. 28, 2015); Neilsen v. Colvin, No. 13-173-NJV, 2014 WL 7 1921317, at *3 (N.D. Cal. May 13, 2014); Lloyd v. Astrue, No. 11-4902-EMC, 2013 WL 3756424, 8 at *4 (N.D. Cal. July 16, 2013); Palomares v. Astrue, No. 11-4515-EMC, 2012 WL 6599552, at 9 *9 (N.D. Cal. Dec. 18, 2012). Defendant asks that if the Court awards EAJA fees, that “it specify that the assignment 11 United States District Court Northern District of California 10 cannot be honored without prior consideration by the Treasury Offset Program,” wherein “the 12 government considers any assignment of EAJA fees to determine whether they are subject to 13 offset” of government debt. (Dkt. No. 22 at 6-7.) As Plaintiff assigned her EAJA fees to the 14 Olinsky Law Group (see Dkt. No. 21, Ex. F at 21), Plaintiff’s award shall be paid directly to the 15 Olinsky Law Group subject to any outstanding federal debt offset determined by the Treasury 16 Offset Program. 17 18 CONCLUSION For the foregoing reasons, Plaintiff’s motion for an award of attorneys’ fees pursuant to 19 EAJA is GRANTED in part, awarding Plaintiff a total award of $8,927.84, including $8,506.16 in 20 fees, $400 in costs, and $21.68 for expenses for 40.7 hours of work. (Dkt. No 21.) The award 21 should be paid directly to Plaintiff's counsel, Olinsky Law Group, less any administrative offset 22 due to Plaintiff’s outstanding federal debt, if any exists. 23 24 IT IS SO ORDERED. Dated: October 11, 2019 25 26 JACQUELINE SCOTT CORLEY United States Magistrate Judge 27 28 9

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