Henderson v. Colvin

Filing 32

ORDER by Judge Kandis A. Westmore granting in part and denying in part Plaintiff's 26 Motion for Attorney Fees. (kawlc1, COURT STAFF) (Filed on 8/16/2016)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
7

ALZATA ELAINE HENDERSON,

Case No. 14-cv-02779-KAW

Plaintiff,
8

ORDER GRANTING IN PART AND
DENYING IN PART PLAINTIFF'S
MOTION FOR ATTORNEYS' FEES

v.
9
10

CAROLYN W. COLVIN,

Re: Dkt. No. 26

Defendant.

United States District Court
Northern District of California

11
12

On June 20, 2016, Plaintiff Alzata Elaine Henderson filed a motion for attorneys’ fees

13

under the Equal Access to Justice Act, 28 U.S.C. §2412(d)(1)(A), following the sentence four

14

remand of the social security case to the Commissioner. (Pl.’s Mot., Dkt. No. 26.) Defendant

15

Commissioner of the Social Security Administration Carolyn W. Colvin opposed the motion on

16

the grounds that the amount of hours claimed is unreasonable. (Def.’s Opp’n, Dkt. No. 28.)

17

Upon review of the moving papers, the Court finds this matter suitable for resolution

18

without oral argument pursuant to Civil Local Rule 7-1(b), and GRANTS IN PART AND

19

DENIES IN PART Plaintiff’s motion for attorneys’ fees.

20
21

I.

BACKGROUND

On June 16, 2014, Plaintiff Alzata Elaine Henderson filed this action for judicial review,

22

pursuant to 42 U.S.C. §§405(g). In her motion for summary judgment, Plaintiff argued that

23

Defendant erred: (1) by failing to include Bipolar Disorder and Post-traumatic Stress Disorder

24

(“PTSD”) as severe impairments; (2) by rejecting the opinions of Plaintiff’s treating and

25

examining sources without clear and convincing or specific and legitimate reasons; (3) in

26

evaluating Plaintiff’s credibility; (4) in determining Plaintiff’s residual functional capacity

27

(“RFC”); (5) by relying on vocational expert testimony that is based on an incomplete

28

hypothetical; and (6) by relying on vocational expert testimony that conflicts with the Dictionary

1

of Occupational Titles (“DOT”). (Dkt. No. 21.)

2

On March 22, 2016, this Court granted Plaintiff’s motion of summary judgment and

3

remanded the case for further administrative proceedings pursuant to sentence four of 42 U.S.C. §

4

405(g). (Dkt. No. 24.) The Court found for Plaintiff on five out of the six issues raised, finding it

5

unnecessary to decide on the sixth issue. Id. The Court ordered that, on remand, the

6

Administrative Law Judge (“ALJ”) will accept the improperly rejected treating and examining

7

source opinions as true, properly assess Plaintiff’s testimony, include in the RFC determination the

8

limitations identified by treating and examining sources that the ALJ improperly rejected, and

9

obtain new vocational expert testimony based on a complete hypothetical that includes the omitted
limitations. Id. The judgment became final on May 23, 2016, when the time to file an appeal

11
United States District Court
Northern District of California

10

expired.

12

On June 20, 2016, Plaintiff filed a motion for attorneys’ fees pursuant to the Equal Access

13

for Justice Act (“EAJA”). (Pl.’s Mot., Dkt. No. 26-1.) On July 5, 2016, Defendant filed an

14

opposition. (Def.’s Opp’n, Dkt. No. 28.) On July 12, 2016, Plaintiff filed a reply. (Pl.’s Reply,

15

Dkt. No. 29.) On August 4, 2016, Defendant filed a surreply to address whether it opposed

16

Plaintiff’s request for an additional 7.0 hours expended in connection with the instant motion.

17

(Def.’s Surreply, Dkt. No. 31.)

18

II.

LEGAL STANDARD

19

A court shall award a prevailing party its fees and expenses in an action against the United

20

States unless “the position of the United States was substantially justified or special circumstances

21

make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The Supreme Court has defined “substantially

22

justified” as “justified in substance or in the main–that is, justified to a degree that could satisfy a

23

reasonable person,” or having a “reasonable basis both in law and fact.” Pierce v. Underwood, 487

24

U.S. 552, 565 (1988). The government bears the burden of establishing substantial justification.

25

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

26

The starting point for determining whether a fee is reasonable is to calculate the lodestar

27

amount, which equals “the number of hours reasonably expended on the litigation multiplied by a

28

reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Courts should generally
2

1

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

2

spend on the case.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). An

3

applicant may be awarded fees for hours spent litigating an EAJA fee award. INS v. Jean, 496 U.S.

4

154, 162 (1990).

5

III.

DISCUSSION

Plaintiff moves for a total attorneys’ fee award of $19,123.09. (Pl.’s Reply at 4.) As an

6
7

initial matter, the Commissioner does not contend that her position was substantially justified.

8

(Def.’s Opp’n at 2.) Thus, Plaintiff is entitled to an award of reasonable attorneys’ fees as a

9

prevailing party under 28 U.S.C. § 2412(d), and the only dispute is whether the number of hours

10

expended on the appeal was reasonable.

United States District Court
Northern District of California

11

A.

12

In establishing the reasonableness of fees and expenses, Plaintiff bears the burden of

Whether the Fee Amount Sought is Reasonable

13

documenting “the appropriate hours expended in the litigation by submitting evidence in support

14

of those hours worked.” Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The

15

appropriate number of hours includes all time “reasonably expended in pursuit of the ultimate

16

result achieved, in the same manner that an attorney traditionally is compensated by a fee-paying

17

client for all time reasonably expended on a matter.” Hensley, 461 U.S. at 431.

18

Plaintiff has submitted declarations from the two attorneys who worked on her case:

19

Steven Weiss, who billed 2.0 hours of time on this matter, and Joanna H. Parnes, who billed 91.75

20

hours of time, plus an additional 7 hours for time spent seeking EAJA fees. (Dkt. Nos. 26-1, 26-4,

21

26-5; Pl.’s Reply at 3-4.)
There is no dispute as to the hourly rate for either Mr. Weiss or Ms. Parnes, because it is

22
23

set by statute. Rather, the parties disagree on the reasonableness of the number of hours billed.

24

Specifically, the Commissioner argues that the fees are not reasonable because they are the result

25

of impermissible block billing, the overall amount of time billed is excessive, and included at least

26

one hour for clerical tasks. (Def.’s Opp’n at 4-5.) The Commissioner contends that Plaintiff is

27

entitled to $7,768 in fees which would represent approximately 40 hours of attorney time. Id. at 5.

28

///
3

1
2

i.

Block Billing

The Commissioner objects to four of Ms. Parnes’s time entries as inadequately

3

documented for failure to identify the amount of time spent on the task performed. “Block billing,

4

which bundles tasks in a block of time, makes it extremely difficult for a court to evaluate the

5

reasonableness of the number of hours expended.” Aranda v. Astrue, No. 08-340, 2011 WL

6

2413996, at *5 (D. Or. June 8, 2011). The four time entries at issue include 2.0 hours on January

7

12, 2015 for “Review [administrative] record, draft outline,” 4.75 hours on January 13, 2015 for

8

“Review record, draft MSJ,” 6.0 hours on January 15, 2015 for “Legal research; draft MSJ,” and

9

another 3.0 hours on January 16, 2015 for “Legal research; draft MSJ.” (Decl. of Joanna Parnes,
“Parnes Decl.,” Dkt. No. 26-5 at 2.) While Ms. Parnes could have been more specific with respect

11
United States District Court
Northern District of California

10

to the billing entries, plaintiff’s counsel “is not required to record in great detail how each minute

12

of [her] time was expended.” Hensley, 461 U.S. at 437 n.12. “[P]laintiff’s counsel can meet [her]

13

burden—although just barely—by simply listing [her] hours and identifying the general subject

14

matter of his time expenditures.” Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000)

15

(internal citations and quotations marked omitted). Notwithstanding, the billing descriptions have

16

not hampered the Court’s ability to evaluate the reasonableness of the hours billed. Thus, the

17

Court declines to reduce the hours sought due to counsel’s block billing.

18
19

ii.

Time billed

The Commissioner also argues that the overall time spent on briefing was excessive.

20

(Def.’s Opp’n at 4.) Specifically, the Commissioner argues that this was a “routine” social

21

security case, such that the more than 60 hours billed by Ms. Parnes spent reviewing the

22

administrative record and researching and preparing the motion for summary judgment, and the 25

23

hours billed in connection with the reply brief are unreasonable. Id. at 5. The Commissioner

24

proposes that the reasonable time spent is 25 hours in connection with the motion for summary

25

judgment—despite acknowledging that 20 of the 25 pages was substantive briefing and not

26

boilerplate— and 10 hours for the reply brief, and, therefore, proposes that the fee award be

27

adjusted downward. Id. The Commissioner’s position, however, is unavailing.

28

First, courts may not apply de facto caps limiting the number of hours attorneys can
4

1

reasonably expend on “routine” social security cases. See Costa v. Comm'r of Soc. Sec. Admin.,

2

690 F.3d 1132, 1133-37 (9th Cir. 2012) (“we question the usefulness of reviewing the amount of

3

time spent in other cases to decide how much time an attorney could reasonably spend on the

4

particular case before the court.”). Although “a district court will always retain substantial

5

discretion in fixing the amount of an EAJA award,” Jean, 496 U.S. at 163, a reduction of fees

6

greater than 10 percent requires clear, specific, and persuasive reasons from opposing counsel.

7

Moreno, 534 F.3d at 1112, 1116 (allowing no more than a 10–percent “haircut” at the court's

8

discretion). Here, the Commissioner’s proposal would result in a more than 50 percent reduction

9

in the amount of fees and the amount of hours for which counsel is compensated. This is a

13

contravention of Ninth Circuit precedent:
courts cannot drastically reduce awards simply because the attorney
has requested compensation for more than forty hours or make
reductions with a target number in mind. Instead, district courts
must explain why the amount of time requested for a particular task
is too high. Any other approach fails to give deference to the
winning lawyer's professional judgment.

14

Costa, 690 F.3d at 1136.

10

United States District Court
Northern District of California

11
12

15

Second, social security cases are not “routine.” Rather, they “are often highly fact-

16

intensive and require careful review of the administrative record, including complex medical

17

evidence.” Id. at 1134 n.1. The administrative record in this case was nearly 700 pages, including

18

numerous medical records from several health care providers detailing Plaintiff’s multiple

19

physical and mental health conditions, as well as reports from five different physicians regarding

20

her physical and mental health issues. In addition, Plaintiff’s motion for summary judgment

21

analyzed six discrete errors made by the ALJ, five of which were decided in Plaintiff’s favor,

22

while the Court did not reach a decision on the sixth. (See Pl.’s Mot. at 6.) That Plaintiff’s counsel

23

spent upwards of 60 hours reviewing the record, researching the legal issues, and drafting the

24

motion for summary judgment is not patently unreasonable given the voluminous medical record

25

and the need to address the ALJ’s weighing of the medical evidence with respect to the findings of

26

five different physicians, and the complexity of the arguments raised. See, e.g., Yesipovich v.

27

Colvin, No. 15-00112 WHA, 2015 WL 5675869, at *7 (N.D. Cal. Sept. 28, 2015) (49.67 hours for

28

the motion for summary judgment and reply were compensable given that the case was highly fact
5

1

intensive, involved many administrative proceedings, and a voluminous administrative record);

2

Stevenson v. Astrue, No. 10-04837 LB, 2012 WL 5412704, at *6 (N.D. Cal. Nov. 6, 2012)

3

(rejecting argument that 59.3 hours was excessive). The 61.75 hours billed in connection with the

4

motion for summary judgment, however, is higher than the typical attorneys’ fee award in social

5

security cases, and Plaintiff fails to address why so many hours were expended. Accordingly,

6

while the Commissioner’s proposed reduction is too harsh, the Court finds that a 10% reduction is

7

appropriate. Yesipovich, 2015 WL 5675869, at *7 (10% reduction on motion for summary

8

judgment was warranted). Thus, Plaintiff may recover for 55.575 hours billed in connection with

9

the motion for summary judgment. The Court declines to impose a reduction for the 25.0 hours
spent on the reply brief. Accordingly, the Court finds that 80.575 hours were reasonably billed in

11
United States District Court
Northern District of California

10

connection with the motion for summary judgment, as were the 5.0 hours billed in connection with

12

Ms. Parnes’s initial review of the administrative record that occurred on January 9, 2015. (Parnes

13

Decl. at 2.) Thus, Plaintiff may recover $16,283.21 for work performed by Ms. Parnes.

14

iii.

Fees are not available for clerical tasks.

15

In opposition, the Commissioner contends that Plaintiff cannot recover for at least one

16

hour of time billed for clerical tasks. (Def.’s Opp’n at 5.) These tasks were performed by Mr.

17

Weiss. (Dkt. No. 26-4.) Plaintiff concedes that 1.25 hours spent on clerical tasks is not

18

compensable, and reduces her request for fees by $237.63, which represents 1.0 hour at the 2014

19

rate of $190.06, and 0.25 hours at 2015 rate of $190.28. (Pl.’s Reply at 3.) Thus, Plaintiff may

20

only recover for 0.25 hours expended by Mr. Weiss in 2014, and 0.5 hours billed by him in 2015,

21

which is a total of $142.66.1

22

iv.

Fees Related to the Fees Motion

Under EAJA, a prevailing party is entitled to fees incurred in protecting the EAJA fee

23
24

award in subsequent litigation by the Government over the amount of the fee award. Jean, 496

25

U.S. at 161; see also Love v. Reilly, 924 F. 2d 1492, 1497 (9th Cir. 1991). For the first time in her

26
27
1

28

This does not include the time spent by Mr. Weiss in connection with the motion for attorneys’
fees, which is addressed below. See discussion infra Part III.A.iv.
6

1

reply, Plaintiff requests $1,331.96 for 7.02 hours of time spent seeking EAJA fees, which consists

2

of 0.5 hours spent meeting and conferring, 3.5 hours preparing the EAJA fee application and

3

declarations, and 3.0 hours preparing the reply brief. (Pl.’s Reply at 3-4.) While Plaintiff should

4

have sought these fees in the original motion, the Commissioner had an opportunity to be heard by

5

way of supplemental briefing. Therein, the Commissioner argued that 4.5 hours is more

6

reasonable. (Def.’s Surreply at 2.) Notwithstanding, Plaintiff failed to support the request for fees

7

incurred in relation to the motion for attorneys’ fees with a sworn declaration as required by the

8

Northern District’s Civil Local Rules. See Civil L.R. 54-5(b). Accordingly, Plaintiff cannot

9

recover fees incurred in connection with the instant motion for attorneys’ fees.
B.

11
United States District Court
Northern District of California

10

Pursuant to the EAJA, “a court shall award to a prevailing party . . . fees and other

12

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

13

court finds that the position of the United States was substantially justified.” 28 U.S.C. §

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

EAJA to “contain a direct fee requirement absent clear textual evidence supporting such an

22

interpretation.” Id. at 595.

The Fee Award Should Be Payable Directly to Counsel

23

Notwithstanding, courts in this district have concluded that Ratliff does not prevent

24

payment of a fee award directly to the attorney if there has been a valid assignment and the

25
26
27
28

2

Plaintiff mistakenly calculated the total time of 8.0 hours, which would have been $1,522.24.
(Pl.’s Reply at 3:23-4:1.) Plaintiff also inadvertently utilized 2015’s statutory hourly rate of
$190.28, rather than the 2016 rate of $191.70. See U.S. COURTS FOR THE NINTH CIRCUIT, Statutory
Maximum Rates Under the Equal Access to Justice Act (2016),
http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited July 28, 2016).
7

1

plaintiff does not owe a debt to the government. See, e.g., Potter v. Colvin, No. 14-cv-02562-JSC,

2

2015 WL 7429376, at *4 (N.D. Cal. Nov. 23, 2015); Hampton v. Colvin, No. 13-cv-04624-MEJ,

3

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

4

WHA, 2015 WL 5675869, at *8 (N.D. Cal. Sept. 28, 2015). As Plaintiff assigned her EAJA fees

5

to Bay Area Legal Aid, Plaintiff’s award, subject to any debt offset, shall be paid directly to Bay

6

Area Legal Aid. (See Pl.’s Assignment, Dkt. No. 26-2.)
IV.

7
8
9
10

United States District Court
Northern District of California

11
12

CONCLUSION

For the reasons set forth above, Plaintiff’s motion for attorneys’ fees under the Equal
Access to Justice Act is GRANTED IN PART AND DENIED IN PART, and Plaintiff is awarded
reasonable attorneys’ fees in the amount of $16,425.87.
IT IS SO ORDERED.
Dated: August 16, 2016
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
8