Williams v. Colvin

Filing 38

ORDER granting 34 Motion for Attorney Fees. Signed by Magistrate Judge John Johnston on 11/16/2015. (SLL, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
AVERY J. WILLIAMS,

CV 14-50-H-JTJ

Plaintiff,

ORDER GRANTING PLAINTIFF’S
MOTION FOR ATTORNEY’S
FEES

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

I. Synopsis
After judicial review by the undersigned, Mr. Williams’s case was remanded
to the Commissioner of Social Security for reconsideration of the Commissioner’s
denial of Mr. Williams’s first application for benefits in light of the
Commissioner’s November 25, 2014 favorable determination on Mr. Williams’s
second application for benefits. (Doc. 32.) Mr. Williams now requests attorney’s
fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc.
34.) Mr. Williams is entitled to attorney’s fees by statute. However, he is not
entitled to the amount requested because the attorney hours spent on the case were
not reasonable. Mr. Williams will be awarded $7,587.96 in fees.

1

II. Jurisdiction and Venue
The District Court has jurisdiction under 42 U.S.C. § 405(g). This case is
assigned to the undersigned by consent of the parties. (Doc. 12.) Venue is proper
in the Helena Division of the District of Montana because Mr. Williams resides in
Lewis and Clark County, Montana. 28 U.S.C. § 1391(e); Local Rule 1.2(c)(3).
III. Status
On July 27, 2015, the Court remanded the case to the Commissioner for
further consideration. (Doc. 32.) Mr. Williams filed an Motion for Attorney Fees
under the EAJA on October 26, 2015. (Doc. 34.) The Commissioner opposes Mr.
Williams’s motion, arguing the number of hours expended on this matter by Mr.
Williams’s counsel is unreasonable. (Doc. 36.) The motion is fully briefed.
(Docs. 34, 36-37.)
IV. Standards
EAJA
The EAJA provides for an award of attorney’s fees to a prevailing party
(other than the United States), unless the position of the United States was
substantially justified or other circumstances make the award of attorney’s fees
unjust. 28 U.S.C. § 2412(d)(1)(A). The position of the government can be
substantially justified even if it was not correct. Pierce v. Underwood, 487 U.S.
2

552, 556 n. 2 (1988). A position is substantially justified if it has a “reasonable
basis in both law and fact.” Id. at 555. The government “need not show it had a
substantial likelihood of prevailing.” Petition of Hill, 775 F.2d 1037, 1042 (9th
Cir. 1985).
“The government’s decision must be substantially justified at each stage of
the proceedings.” Shafer v. Astrue, 518 F.3d 1067, 1071 (citing Corbin v. Apfel,
149 F.3d 1051, 1052 (9th Cir. 1998)). When the Administrative Law Judge’s
(ALJ’s) decision was reversed on the basis of a procedural error, the question is
whether the Commissioner’s decision to defend on appeal the procedural errors
committed by the ALJ was substantially justified. Id. “The nature and scope of
the ALJ’s legal errors are material in determining whether the Commissioner’s
decision to defend them was substantially justified.” Sampson v. Chater, 103 F.3d
918, 922 (9th Cir. 1996) (citing Flores v. Shalala, 49 F.3d 562, 570 (9th Cir.
1995)). “It is difficult to imagine any circumstance in which the government’s
decision to defend its actions in court would be substantially justified, but the
underlying administrative decision would not.” Id.
Lodestar
The proper method of calculating an award of attorney’s fees is the
“lodestar” method. Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir.
3

1996). The “lodestar” method multiplies the hours reasonably expended by the
prevailing party on the litigation by a reasonable hourly rate. Id. That total can
then be adjusted if warranted under the circumstances of the case. Id.
Billing rates
An attorney’s hourly rates “are to be calculated according to the prevailing
market rates in the relevant community.” Blum v. Stenson, 465 U.S. 886, 895
(1984). The party seeking fees has the burden of proving the reasonableness of the
claimed rates. Id. Rates must be based on the attorney’s “experience, skill, and
reputation.” Chalmers v. Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986)
opinion amended on denial of reh’g.
Reasonable hours
The party seeking fees bears the burden of submitting detailed time records
justifying the hours claimed. Chalmers, 796 F.2d at 1210. Contemporaneous
records of hours worked are preferred in the Ninth Circuit. Fischer v. SJB-P.D.,
Inc., 214 F.3d 1115, 1121 (9th Cir. 2000).
In Hensley, the United States Supreme Court explained:
The district court also should exclude from this initial fee calculation hours
that were not “reasonably expended.” Cases may be overstaffed, and the
skill and experience of lawyers vary widely. Counsel for the prevailing
party should make a good faith effort to exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessary, just as a lawyer in
private practice ethically is obligated to exclude such hours from his fee
4

submission.
461 U.S. at 434 (internal citations omitted).
The Court may credit that party with fewer hours if the time claimed is
“excessive, redundant, or otherwise unnecessary.” Cunningham v. County of Los
Angeles, 879 F.2d 481, 484 (9th Cir. 1988). Some cases indicate that in Social
Security disability cases, compensated hours generally range from 20 to 40 hours.
DiGennaro v. Bowen, 666 F.Supp. 426, 433 (E.D.N.Y. 1987); Patterson v. Apfel,
99 F.Supp.2d 1212, 1214 and n. 2 (C.D. Cal. 2000) (finding 33.75 hours claimed to
be spent reasonable and noting in general approved range of 20 to 46 hours for
services performed before district court); Bunn v. Bowen, 637 F.Supp. 464, 470
(E.D.N.C. 1986) (stating that never before had 51 hours of compensable time been
claimed before it in social security cases).
V. Facts
On March 10, 2011, Mr. Williams applied for disability benefits and
supplemental security income. (Tr. 197-209.) The Administration denied his
claim on November 9, 2011. (Tr. 80-92.) Upon reconsideration, the
Administration affirmed its denial of Mr. Williams’s claim on March 1, 2012. (Tr.
108-20.)
On March 26, 2012, Mr. Williams requested a hearing with an ALJ. (Tr.

5

146-47.) The ALJ conducted a video hearing on December 12, 2012. (Tr. 40-77.)
Mr. Williams was present at the hearing with counsel and testified on his own
behalf. Id. On January 31, 2013, the ALJ determined Mr. Williams did not qualify
for benefits. (Tr. 25-34.) On March 25, 2013, Mr. Williams requested the Social
Security Administration Appeals Council (Appeals Council) review the ALJ’s
determination. (Tr. 15.) On May 30, 2014, the Appeals Council denied Mr.
Williams’s request, making the ALJ’s determination the final decision of the
Commissioner. (Tr. 1-4.)
On June 12, 2014, Mr. Williams filed a second application for disability
benefits and supplemental security income, in which he alleged a disability onset
date of January 31, 2013. (Doc. 24 at 1.) The Commissioner granted Mr.
Williams’s second application on November 25, 2014, finding that he met listing
12.04-C2 for Affective Disorders and that he was disabled as of March 1, 2014.
Id. at 7-8.
Mr. Williams sought judicial review of the Commissioner’s decision. (Doc.
1.) This Court concluded: (1) the Commissioner’s determination that Mr. Williams
engaged in substantial gainful activity after filing his application for benefits was
not supported by substantial evidence; and (2) Mr. Williams presented new and
material evidence. Therefore, the Court reversed and remanded the case to the
6

Commissioner to reconsider her denial of Mr. Williams’s first application of
benefits in light of the Commissioner’s November 25, 2014 favorable
determination on Mr. Williams’s second application for benefits. (Doc. 32.)

Mr. Williams requests an award of attorney’s fees totaling $10,433.16 (2
hours at $190.06 per hour and 53 hours at $189.68 per hour). (Doc. 34.)
VI. Analysis
This analysis consists of three steps. First, the Court must determine if Mr.
Williams is entitled to costs and fees. If so, the Court must calculate the lodestar
rate. Finally, the Court must determine if it is appropriate to adjust the lodestar
rate upward or downward.
A.

Plaintiff is entitled to fees.

In the present case, Mr. Williams prevailed. Podgorney v. Barnhart, 207
Fed.Appx. 827,. 829 (9th Cir. 2006) (citing Shalala v. Schaefer, 509 U.S. 292, 302
(1993); Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002) (“It is settled law
that a claimant who receives a remand under sentence four is a prevailing party for
EAJA purposes.”). The Commissioner concedes that because of the ALJ’s
procedural errors, the government’s position was not substantially justified. The
Commissioner does not object to Mr. Williams’s request for fees on these grounds.
7

(Doc. 36 at 2.) Thus, Mr. Williams is entitled to fees.
B.

Lodestar rate

The lodestar rate is the product of the hours reasonably expended multiplied
by the reasonable hourly rate.
i.

Reasonable hours

Mr. Williams’s attorney submitted records of the hours worked on this case.
(Doc. 34-1.) Mr. Williams’s attorney claimed 55 hours of work, including 4 hours
drafting a motion to remand, 33 hours on the opening brief, and 12 hours on the
reply brief. Mr. Williams established through these records that his attorney did, in
fact, work the hours claimed.
The Commissioner argues the 55 hours for which Mr. Williams’s counsel
seeks to recover is excessive. The Court agrees. The Court has reviewed counsel’s
itemized statement of time spent and finds that the 55 hours for which Mr.
Williams seeks to recover fees is excessive. Although Mr. Williams prevailed and
the administrative record was slightly longer than average (842 pages), the legal
issues were not complex or unusual. Mr. Williams’s attorney has significant
experience representing claimants on Social Security appeals. (Doc. 34-1 at 2-3.)
In view of counsel’s significant experience, and the fact that the issues in this case
were not particularly complex, some of counsel’s itemized time is excessive. For
8

example, counsel spent a total of 33 hours preparing an opening brief that raised 12
issues, only two of which were dispositive and addressed by the Court. (Docs. 32,
34-1.)
For these reasons, the Court concludes that the hours for which Mr.
Williams’s counsel seeks attorney’s fees should be reduced from 55 hours to 40
hours.
ii.

Reasonable rate

The hourly rate requested is reasonable. Attorney Russell A. LaVigne, Jr.,
merits $189.68 and $190.06 per hour. The Commissioner does not dispute that the
rate is reasonable.
iii. Lodestar total
Using the figure recommended above, the lodestar calculation is as follows:
Russell A. LaVigne, Jr.:

C.

2 hours reasonably worked multiplied by
$190.06 per hour + 38 hours reasonably
worked multiplied by $189.68 per hour =
$7,587.96

No adjustment of the fees is appropriate

The lodestar rate accurately reflects the reasonable time spent on this case by
Mr. Williams’s attorney and fairly appraises his hourly rate. No adjustment is
appropriate.
VII. Conclusion
9

Mr. Williams is entitled to attorney’s fees because the government’s position
was not substantially justified.
Therefore, IT IS ORDERED that Plaintiff’s Motion for Attorney Fees
under the EAJA (Doc. 34) is GRANTED in the amount of $7,587.96.
Dated the 16th day of November, 2015.

10