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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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YVONNE MARIA KHAN,

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Plaintiff,

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COMMISSIONER OF SOCIAL
SECURITY,

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United States District Court
Northern District of California

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Re: Dkt. Nos. 21, 22, 23

Defendant.

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ORDER RE: PLAINTIFF’S MOTION
FOR ATTORNEY'S FEES

v.

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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

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(“Defendant”) does not contest the substantial justification of the original action and instead

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challenges only the amount of fees sought, Plaintiff’s motion is GRANTED in part, as explained

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below.

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BACKGROUND

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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

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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.
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Plaintiff and Defendant have consented to the jurisdiction of a magistrate judge pursuant to 28
U.S.C. § 636(c). (Dkt. Nos. 8, 9.)
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that the Administrative Law Judge (“ALJ”) must adequately consider medical and testimonial

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evidence in light of Plaintiff’s fibromyalgia and reassess Plaintiff’s residual functioning capacity.

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(Dkt. No. 19.) Plaintiff then filed the underlying motion for EAJA fees in the amount of

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$8,413.60. (Dkt. No. 21 at 2.) Plaintiff requested an additional $400 for costs, $21.68 for

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expenses, and $674.00 (rounded from the requested $674.025) for the time spent drafting the

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reply. (Dkt. Nos. 21 at 2 & 23 at 10.)

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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

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special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The Supreme Court

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United States District Court
Northern District of California

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has defined “substantially justified” as “justified in substance or in the main–that is, justified to a

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degree that could satisfy a reasonable person,” or having a “reasonable basis both in law and fact.”

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Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government bears the burden of establishing

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substantial justification. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001).

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If the government’s position was not substantially justified, then the plaintiff may be

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eligible for an award of fees under the EAJA; however, eligibility is not an automatic award.

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Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998). Rather, the plaintiff must prove that the fees

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sought are reasonable. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001) (“The burden is on

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the plaintiff to produce evidence that the requested rates are in line with those prevailing in the

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community for similar services by lawyers of reasonably comparable skill, experience, and

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reputation.”) (internal quotation marks omitted).

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The starting point for determining whether a fee is reasonable is “the number of hours

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reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v.

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Eckerhart, 461 U.S. 424, 433 (1983). The applicant must exercise “billing judgment,” i.e., the

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fees must be for services for which a private client would pay. Id. at 434 (“Hours that are not

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properly billed to one’s client also are not properly billed to one’s adversary pursuant to statutory

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authority.”). Courts should generally “defer to the winning lawyer’s professional judgment as to

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how much time he was required to spend on the case.” Moreno v. City of Sacramento, 534 F.3d
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1106, 1112 (9th Cir. 2008). An applicant may be awarded fees for hours spent litigating an EAJA

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fee award. INS v. Jean, 496 U.S. 154, 162 (1990).

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DISCUSSION

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Plaintiff moves for a total fee award of $9,087.60, plus $400 for costs and $21.68 for

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expenses. (Dkt. No. 23 at 10.) Defendant does not contend that its position here was substantially

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justified. Plaintiff is therefore entitled to an award as a prevailing party under 28 U.S.C. §

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2412(d.) See Gutierrez, 274 F.3d at 1258 (“It is the government’s burden to show that its position

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was substantially justified.”). The only disputes between the parties are whether the fees requested

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are reasonable, including whether Plaintiff is entitled to fees related to her reply brief, and whether

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United States District Court
Northern District of California

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the fees can be awarded directly to Plaintiff’s counsel.
A.

Reasonableness of Fees

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When awarding a party attorneys’ fees pursuant to the EAJA, the Court must determine the

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reasonableness of the fees sought. Sorenson, 239 F.3d at 1145. In establishing the reasonableness

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of fees and expenses under EAJA, it is Plaintiff’s burden to document “the appropriate hours

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expended in the litigation by submitting evidence in support of those hours worked.” Gates v.

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Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). As previously discussed, the appropriate

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number of hours includes all time “reasonably expended in pursuit of the ultimate result achieved,

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in the same manner that an attorney traditionally is compensated by a fee-paying client for all time

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reasonably expended on a matter.” Hensley, 461 U.S. at 431.

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Here, Plaintiff submits her attorney’s affirmation in support of fees with five exhibits, the

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first three of which break down the time spent on the case. (Dkt. No. 21 at 4-21.) Exhibit A

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details the time spent by all who worked on the case in chronological order. (Id. at 5, 9-10.)

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Exhibit B breaks down the work on the case by attorney. (Id. at 5, 12-13.) Exhibit C breaks down

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the work by each paralegal. (Id. at 5, 15.) Plaintiff’s counsel also sets forth the requested hourly

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rates for attorney time and paralegal time. (Id. at 5.) There does not appear to be a dispute as to

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the hourly rates of the attorneys or the paralegals; rather, Defendant disputes the fees in general as

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unreasonable and “too high,” arguing that: (1) Plaintiff claims hours at both paralegal and attorney

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rates for tasks that were “clerical or secretarial in nature,” (2) Plaintiff “plainly overbills for some
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tasks,” (3) the block billing “almost certainly inflates her claimed hours,” and (4) the multiple 0.1

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hour entries “unwarrantedly increase the total time billed.” (Dkt. No. 22 at 4-6.) The Court

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addresses each argument in turn, and agrees that some of Plaintiff’s requested time is

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unreasonable. As discussed below, the Court concludes that Plaintiff is entitled to $8,506.16 in

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fees.

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1.

“Clerical or Secretarial” Tasks

Defendant first contends that Plaintiff claims hours at both paralegal and attorney rates for

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tasks that were “clerical or secretarial in nature.” (Dkt. No. 22 at 4.) “[P]urely clerical or

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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

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United States District Court
Northern District of California

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hourly rates, the court should reduce the hours requested to account for the billing errors.”

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Nadarajah v. Holder, 569 F.3d 906, 921 (9th Cir. 2009). This Court has previously noted that

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“[t]asks such as preparing proofs of service, processing records, posting letters for mail,

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photocopying, three-hole punching, internal filing, calendaring, and preparing the summons and

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complaint for filing have been found to be purely clerical tasks for which fees are not

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recoverable.” Reenders v. Premier Recovery Grp., No. 18-cv-07761-PJH (JSC), 2019 WL

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2583595, at *7 (N.D. Cal. May 7, 2019) (citing Borillo v. Legal Recovery Law Offices, Inc., No.

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5:16-cv-05508-HRL, 2017 WL 1758088, at *6 (N.D. Cal. May 5, 2017)).

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Here, Defendant points to 17 time entries that are, or contain, allegedly clerical tasks that

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are not reimbursable. (See Dkt. Nos. 21 at 9-10 & 22 at 4-5.) Of these 17 tasks, the Court agrees

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that nine are non-compensable, purely secretarial tasks; specifically, the entries on May 15, 2018

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(federal forms packet prepared for client completion (0.6); FDC packet sent (0.2); FDC pack

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returned (0.3); filing fee payment received (0.1)); May 16, 2018 (preparing summons (0.6)); May

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25, 2018 (file via ECF (0.2)); July 30, 2018 (“Note Reminder to counsel re: Case number when

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filing” (0.1)); and August 23, 2018 (receipt of answer and notice of service of transcript (0.1);

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generated PDF of court transcript (1.8)). (See Dkt. No. 21 at 9.)

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Plaintiff counters that tasks that are not “purely clerical” and which are routinely

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performed by attorneys should be reimbursable. (Dkt. No. 23 at 4 (citing Rabadi v. Astrue, No.
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EDCV 03-00774-MAN, 2012 WL 13167630, at *5 (C.D. Cal. Nov. 8, 2012)).) Agreed. But the

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tasks the Rabadi court found were not purely clerical are different from the tasks the Court has

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found as stated above were clerical.

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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).
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Overbilling

Defendant also contends that “Plaintiff plainly overbills for some tasks,” pointing to two

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tasks in particular, the 0.3 hours spent reviewing a summons (May 18, 2018) and the 0.3 hours for

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“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.)

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United States District Court
Northern District of California

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While Plaintiff counters that Defendant fails to explain how these two examples constitute

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overbilling, Defendant relies on Mallard wherein the court found 0.2 hours for reviewing a

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summons unreasonable, and where it found 0.3 hours spent referring the action “back to Referral

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Source” overbilling. (See Dkt. No. 22 at 5 (citing Mallard v. Berryhill, No. 1:17-cv-01212 – JLT,

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2019 WL 2389506, at *4 (E.D. Cal. Jun. 6, 2019)).)

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In Mallard, the court found the 0.1 hours spent consenting to a magistrate judge to

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constitute overbilling, saying it “is a simple check-box form that would take mere moments to

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review,” Mallard, 2019 WL 2389506, at *4. While the same task is logged here at the same

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amount of time, the Court disagrees that 0.1 hours is excessive. (See Dkt. No. 21 at 9).

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Consenting to a magistrate judge requires the attorney for the party, or the party themselves if pro

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se, to read, check, and sign the consent form that is then submitted to the court. (See Dkt. Nos. 8

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& 9.) The Court finds that six minutes is not unreasonable for an attorney to read, check, and sign

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the magistrate judge consent form and, thus, declines to reduce the hours expended on this task.

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The Mallard court similarly found the 0.3 hours spent with the referral source to constitute

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overbilling, saying only “it is unclear why referring the action ‘back to Referral Source’ after the

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Court’s remand order would take 0.3 hour.” Mallard, 2019 WL 2389506, at *4. Here, absent

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further detail, the Court finds the time spent with the referral back source to be excessive and

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awards only 0.2 hours for the task, which is a reasonable amount of time.
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While the Mallard court reduced the remaining time reported by ten percent to account for

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overbilling and block billing, here, a ten percent cut is not warranted absent pervasive block

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billing and overbilling issues like those found in Mallard. See Mallard, 2019 WL 2389506, at *4.

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Rather, the Court will only reduce the time on the above-mentioned task, awarding 0.2 hours for

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the referral source task. The 0.3 hours spent reviewing the summons was resolved in the prior

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section and the 0.1 hour spent consenting to the magistrate judge has been resolved in this section.

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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

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United States District Court
Northern District of California

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issue with and instead cites cases where courts have looked unfavorably on block billing. (See id.)

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Defendant cites Role Models America, Inc. v. Brownlee wherein the court found the block

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billing of sometimes unrelated tasks hindered the ability to evaluate reasonableness. (See Dkt. No.

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22 at 5 (citing Role Models America, Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir. 2004)).)

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Unlike in Role Models, however, here the task entries rarely appear to lump together multiple

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tasks, and those that do are clearly related and pertain to one task within the case, such as October

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17, 2018 when Stuart Barasch (Attorney) reviewed co-counsel’s brief, implemented final edits,

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and filed. (See generally Dkt. No. 21 at 9-10.) The Court notes that in Mallard v. Berryhill, the

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court expressed concern over block billing entries that contained compensable and clerical tasks.

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2019 WL 2389506, at *4. While Defendant fails to point to any specific entry, the two instances

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where Plaintiff’s counsel’s purported block billing does contain a clerical task (i.e., filing), the

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total time spent was a mere 0.2 and 0.3 hours, neither of which seems unreasonable for time spent

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reviewing and editing a brief, plus filing it. (Dkt. No. 21 at 10 (10/17/2018; 11/26/2018).)

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Further, Plaintiff’s counsel’s time sheet includes multiple entries per day and either bills the time

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at 0.00 hours for clerical work performed or, according to Plaintiff, does not include the time.

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(See Dkt. Nos. 21 at 6 & 23 at 6.)

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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
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billing.

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0.1 Hour Entries

Defendant last contends that Plaintiff’s multiple 0.1 hour billing entries “unwarrantedly

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increase the total time billed.” (Dkt. No. 22 at 6.) While it is true that Plaintiff records ten “0.1”

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hour time entries, (see Dkt. No. 21 at 9-10), three of these ten have been resolved above, leaving

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seven 0.1 hour entries at issue. Plaintiff notes that there are more tasks logged at 0.0 hours than

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there are at 0.1 hours, casting doubt on Defendant’s argument that the multiple “perfunctory” tasks

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logged at 0.1 hours “unwarrantedly increase” the total time billed. (See Dkt. Nos. 21 at 9-10, 22 at

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6, 23 at 5-6.)
Defendant cites to Lopez v. Astrue wherein the court reduced the total time for multiple 0.1

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United States District Court
Northern District of California

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hour entries, saying, “While the Court appreciates that counsel needs to review the docket and this

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court’s orders, the total amount billed is excessive when each amount it recorded as a discrete six-

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minute event.” Lopez v. Astrue, No. 1:10-cv-1012 AWI GSA, 2012 WL 2052146, at *2 (E.D. Cal.

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Jun. 6, 2012) (emphasis added) (citing Downey v. Astrue, No. 1:09–cv–812 SKO, 2001 WL

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12505824, at *12-13 (E.D. Cal. Apr. 11, 2012)). There, seven 0.1 hour entries were recorded for

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tasks such as “reviewing court docket,” “reviewing court documents,” “reviewing defendant’s

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consent to magistrate”, and “reviewing return receipt.” Id.

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Lopez does not persuade the Court that a reduction is required for multiple 0.1 entries. The

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Lopez entries there were either vague (“reviewing court documents on 6/8/10”) or multiple entries

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were made for perfunctory tasks such as reviewing the docket (“.1 hours reviewing court docket

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entry on 6/3/10”; “0.1 hours reviewing the docket on 6/29/10”) or reviewing return receipts (“0.1

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hours reviewing return receipt on 7/14/10”; “0.1 hours reviewing return receipt on 7/16/10”).

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Lopez, 2012 WL 2052146, at *2. Here, unlike Lopez, the remaining 0.1-hour entries left at issue

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include, on May 25, 2018, “Review summons issued as to Commissioner, USAO, and AG,” or, on

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August 27, 2018, “Review order reassigning case to MJ Corley-Judge Rogers no longer assigned.”

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(Dkt. No. 21 at 9-10.) (Dkt. No. 21 at 9-10.) The 0.1 hour tasks left here are specific and

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substantive such that they are often handled by attorneys and, accordingly, do not unwarrantedly

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increase the total time.
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Thus, the Court will not reduce the compensable hours on this basis.
5.

Plaintiff is Entitled to Fees for Preparing the Reply Brief

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Under the EAJA, a prevailing party is entitled to fees incurred in litigation with the

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government in moving for an EAJA fee award. Jean, 496 U.S. at 161; see also Love v. Reilly, 924

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F.2d 1492, 1487 (9th Cir. 1991). Plaintiff’s request for $674.00 (rounded) for the 3.3 additional

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hours spent drafting the underlying reply brief is reasonable and on par with, or less than, what

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this Court and others have granted in similar cases. See, e.g., Valle v. Berryhill, No. 16-cv-02358-

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JSC, 2018 WL 1449414, at *3 (N.D. Cal. Jan. 18, 2018) (awarding $1910.51 for 9.75 additional

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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);

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United States District Court
Northern District of California

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Lauser v. Colvin, No. 13-05990-MEJ, 2015 WL 1884330, at *5 (N.D. Cal. Apr. 23,

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2015) (awarding $1,110.21 for fees for preparing the reply brief); Smith v. Astrue, No. C 10–4814

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PJH, 2012 WL 3114595, at *5 (N.D. Cal. July 31, 2012) (granting fees for 2.6 hours of work spent

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preparing the reply brief on the fees motion).

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***
Accordingly, the Court awards Plaintiff $8,506.16 in attorneys’ fees.
B.

The Fee Award Should Be Paid Directly to Counsel

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As previously discussed, under the EAJA “a court shall award to a prevailing party . . . fees

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and other expenses . . . incurred by that party in a civil action (other than cases sounding in tort) . .

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. unless the court finds that the position of the United States was substantially justified.” 28

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U.S.C. § 2412(d)(1)(A). In Astrue v. Ratliff, 560 U.S. 586, 594 (2010), the Supreme Court

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considered this provision of the EAJA and whether it makes a fee payable to the prevailing party

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or the attorney. The Supreme Court noted the absence of language in the EAJA explicitly

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directing fees to attorneys and compared EAJA with a provision in the Social Security Act making

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fee awards payable “to such attorney.” Id. at 595 (citing 42 U.S.C. § 406(b)(1)(A)). In so doing,

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the Court concluded that “given the stark contrast between the SSA’s express authorization of

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direct payments to attorneys” and the absence of such language in EAJA, it would not interpret

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EAJA to “contain a direct fee requirement [to the attorney] absent clear textual evidence
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supporting such an interpretation.” Id. at 595.
Courts in this District have nonetheless concluded that Ratliff does not prevent payment of

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a fee award directly to the attorney if there has been a valid assignment and the plaintiff does not

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owe a debt to the government. See Hampton v. Colvin, No. 13-CV-04624-MEJ, 2015 WL

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1884313, at *7 (N.D. Cal. Apr. 23, 2015); Yesipovich v. Colvin, No. 15-00112-WHA, 2015 WL

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5675869, at *8 (N.D. Cal. Sept. 28, 2015); Neilsen v. Colvin, No. 13-173-NJV, 2014 WL

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1921317, at *3 (N.D. Cal. May 13, 2014); Lloyd v. Astrue, No. 11-4902-EMC, 2013 WL 3756424,

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at *4 (N.D. Cal. July 16, 2013); Palomares v. Astrue, No. 11-4515-EMC, 2012 WL 6599552, at

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*9 (N.D. Cal. Dec. 18, 2012).
Defendant asks that if the Court awards EAJA fees, that “it specify that the assignment

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United States District Court
Northern District of California

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cannot be honored without prior consideration by the Treasury Offset Program,” wherein “the

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government considers any assignment of EAJA fees to determine whether they are subject to

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offset” of government debt. (Dkt. No. 22 at 6-7.) As Plaintiff assigned her EAJA fees to the

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Olinsky Law Group (see Dkt. No. 21, Ex. F at 21), Plaintiff’s award shall be paid directly to the

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Olinsky Law Group subject to any outstanding federal debt offset determined by the Treasury

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Offset Program.

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CONCLUSION
For the foregoing reasons, Plaintiff’s motion for an award of attorneys’ fees pursuant to

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EAJA is GRANTED in part, awarding Plaintiff a total award of $8,927.84, including $8,506.16 in

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fees, $400 in costs, and $21.68 for expenses for 40.7 hours of work. (Dkt. No 21.) The award

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should be paid directly to Plaintiff's counsel, Olinsky Law Group, less any administrative offset

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due to Plaintiff’s outstanding federal debt, if any exists.

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IT IS SO ORDERED.
Dated: October 11, 2019

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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