Young v. Commissioner Social Security Administration

Filing 26

ORDER: Granting in Part Denying in Part Application for Fees Pursuant to EAJA 21 . Signed on 2/24/2017 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MELISSA JO YOUNG,
Plaintiff,

CaseNo.1:15-cv-01688-MA
ORDER FOR EAJA FEES

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge
On October 11, 2016, the Court is.sued and Opinion and Order reversing the Conunissioner' s
of Social Security ("the Commissioner") final decision, and remanding this case for an immediate
payment of benefits. Op. & Order, ECF No. 19. On Janumy 7, 2017, Plaintiff Melissa Jo Young
requested an award of attorney fees in the amount of $15,269.26 for 79.7 hours of attorney time
pursuant to the Equal Access to Justice Act ("EAJA'), 28 U.S.C. § 2412. Pl.'s Appl. for Fees, ECF
No. 21. The Conunissioner does not dispute that Plaintiff is entitled to fees, but contests the
reasonableness of Plaintiffs request and seeks a reduction to 30 hours of attorney time. Def. 's

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Resp., ECF No. 24. Plaintiff has filed a reply. Reply, ECF No. 25. For the reasons that follow,
Plaintiffs application for fees is granted in part and denied in part.

BACKGROUND
Plaintiffprotectively filed an application for supplemental security income ("SSI") disability
benefits alleging disability due to post-traumatic stress disorder ("PTSD"), hepatitis C, and pain in
her foot, back, and head, and difficulty balancing. Plaintiffs application was denied initially and
upon reconsideration. After a hearing, the ALJ issued an unfavorable hearing. Plaintiff appealed.
Based on a stipulation by the parties, on September 13, 2013, the court entered an order reversing
and remanding the case for further administrative proceedings, including that the ALJ undertake a
drug abuse and alcoholism ("DAA'') materiality analysis on remand. The Appeals Council directed
the ALJ to update the record, conduct additional consultative examinations, reconsider medical
opinions, reconsider lay testimony, and continue the sequential evaluation process, and if Plaintiff
is found disabled, "dete1mine whether alcoholism is a contributing factor material to the finding of
disability." Tr. 415.
After consultative examinations and a new hearing were conducted, the ALJ issued a decision
finding that Plaintiff is disabled because she meets or equals Listing 12.06 and 12.09. However,
unde1iaking the DAA materiality analysis, the ALJ found Plaintiff has the residual functional
capacity to perform a modified level of light work if the substance stopped. Accordingly, the ALJ
determined Plaintiffs alcoholism is a contributing factor material to her disability determination,
and therefore, she is not entitled to disability benefits. Op. & Order at 4-5.
On appeal to this court, I concluded that the ALJ erroneously evaluated the medical evidence
at step three of the DAA materiality analysis. Specifically, I concluded that the ALJ erred in finding

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that Plaintiffs Paragraph B limitations of Listing 12.06 would improve from "marked" to
"moderate" in the absence of her substance abuse and failed to consider Dr. Rawlins' 2006 Mental
Residual Functional Capacity Assessment. Additionally, I noted that the case "demonstrates the ·
difficulty in disentangling a claimant's substance abuse from a co-occuning mental disorder,
especially when there are limited or no periods of abstinence." Op. & Order at 19, ECF 19.

I

concluded that when Dr. Rawlins' 2006 and 2007 opinions were fully credited, Plaintiffs cooccun'ing metal disorder would not improve to the point of nondisability when her alcoholism is
absent, and that therefore, her alcoholism is not a contributing factor material to her disability, and
remanded the case for an immediate calculation of benefits.
As the prevailing patty, Plaintiff filed the current application for fees under the EAJA. The
Commissioner concedes that its position was not substantially justified, and the Court so finds. 28
U.S.C. § 2412(d)(l)(A-B). As the prevailing patty, Plaintiff is entitled to a reasonable fee. The
Commissioner contends that the amount of fees should be reduced because the amount is
umeasonable and improperly includes duplicative time.

DISCUSSION
I.

Standards
An award of attorney fees under the EAJA must be reasonable. 28 U.S.C. § 2412(d)(2)(A).

The co mt has an independent duty to review the fee request to determine its reasonableness. Hensley
v. Eckerhart, 461 U.S. 424, 433 (1983); Costa v. Comm 'r Soc. Sec. Admin., 690 F.3d 1132, 1135

(9th Cir. 2012); lvforeno v. City ofSacramento, 534 F.3d 1106, 1111 (9th Cir. 2008). The starting
point for a reasonable fee is the "lodestar method" or, the number of hours expended multiplied by
a reasonable hourly rate. Hensley, 461 U.S. at 434. Counsel for the prevailing party should exercise

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good billing judgment, and eliminate from fee requests hours that are "'excessive, redundant, or
otherwise unnecessmy' as a lawyer in private practice would do." Costa, 690 F.3d at 1135 (quoting
Hensley, 461 U.S. at 434; 1vforeno, 534 F.3d at 1111.

The fee applicant bears the burden of documenting the appropriate hours expended in the
litigation and must submit evidence in support of those hours worked. See Gonzalez v. City of
JV!aywood, 729 F.3d 1196, 1202 (9th Cir. 2013). The pmty opposing the fee request has the burden

of rebuttal which requires the submission of evidence to challenge the accuracy and reasonableness
of the hours charged. Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). Where
documentation is inadequate, the court may reduce the requested award. Hensley, 461 U.S. at 43334.
The amount of the fee award must be determined on the facts of each case. Hensley, 461
U.S. at 429. Assessing whether an attorney has spent a reasonable amount of time on a case "will
always depend on case-specific factors including, among others, the complexity of the legal issues,
the procedural hist01y, the size of the record, and when counsel was retained." Costa, 690 F.3d at
1136. While a court may not adopt de facto policy ofrestricting EAJA awards in social security cases
to 40 hours or less, courts may consider EAJA awards in other cases as one of many factors in
evaluating the reasonableness of a fee request, provided they explain why the amount of time
requested for a particular task is too high. Id The comt may consider the fact that 20 to 40 hours
is the range most often requested in social security cases, but the court may not limit attorney fee
requests to 20 to 40 hours in "routine" cases. Id. See also Stearns v. Colvin, Case No. 3:14-cv05611-JRC, 2016 WL 730301, *4 (W.D. Wash. Feb. 24, 2016) (reducing award by 10 hours to
account for excessive time spent on case given complexity of issues and length of administrative

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record). A district court has "substantial discretion in fixing the amount of an EAJA award."
Comm 'r, INS v. Jean, 496 U.S. 154, 163 (1990).

II.

Excessive Time. Inadequately Explained Entries. and Block Billing
Plaintiff seeks a total of$15,269.26 in attorney fees for 79.7 hours expended broken down

as follows: $190.28 per hour for 6.5 hours expended in 2015 (4.5 hours by attorney Tim Wilborn
and2 hours by attorney Ralph Wilborn), $191.70 per hourfor73.2hours expended in 2016 and2017
(9. 7 hours by Tim Wilborn and 63 .5 hours by Ralph Wilborn). In this case, the Commissioner does
not object to the hourly rate, and I note that the rates are within the statuto1y cap provided for under
the EAJA, and that Plaintiff does not seek costs or expenses.
The Commissioner contends that 79. 7 hours is excessive. The Commissioner argues the case
was largely routine, and that the administrative record was of average length. Additionally, the
Commissioner notes that Plaintiffs counsel is ve1y experienced, and although the briefing involved
issues ofalcoholism, some of the arguments presented did not result in tangible benefits for Plaintiff.
Without question, the total requested time of79.7 hours far exceeds that awarded in most
social security disability cases before me. Here, Attorney Ralph Wilborn seeks compensation for
3 8 hours to review the administrative record and prepare the Plaintiffs Opening Brief, and another
25 .5 hours to prepare Plaintiffs Reply Brief. Attorney Tim Wilborn seeks compensation for another
14.2 hours to edit the Opening and Reply Briefs and correspond with the Commissioner, Plaintiff,
and the court.
In Plaintiffs 27-page Opening Brief, she asserted five issues, most of which routinely appear

before me in social security disability cases- listing equivalency, credibility, evaluation of medical
evidence, and lay testimony. Additionally, the transcript in this case was of average length at 537

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pages. See Kellyv. Comm 'r Soc. Sec. Admin., Case No. 1: l 5-cv-00762-MA, 2016 WL 4941996, *23 (Sept. 15, 2016) (noting that 463-page transcript was of average length); Brooks v. Colvin, Case
NO. 3:15-cv-05207-DWC, 2016 WL 4061573, *4 (W.D. Wash. July 28, 2016) (noting 605-page
transcript was not unusually large). And, I note that Plaintiffs attorneys are very experienced and
appear with regularity before me and in the District of Oregon. Kelly, 2016 WL 4941996 at *3.
Yet, as Plaintiffs cmTectly indicates, her challenge to the ALJ's DAA materiality analysis
was both novel and complex. Here, resolution of the case involved interpretation of a fairly recent
social security ruling, SSR l 3-2p, and subsections involving co-occurring mental disorders and
periods of abstinence. Indeed, the DAA materiality analysis and its interplay with SSR 13-02p(7)
and (9), and evaluation of the relevant medical opinions was challenging and could be expected to
require additional research, writing, and briefing.
The difficulty for the court, however, is the limited description for the vast majority of tasks
and block billed foimat of Attorney Ralph Wilborn's hours in drafting the Briefs. "Block billing,
which bundles tasks in a block of time, makes it extremely difficult for a court to evaluate the
reasonableness of the number ofhours expended." Arandav. Astrue, No. CV 08-340-MA, 2011 WL
2413996, at *5 (D. Or. June 8, 2011). While "the fee applicant bears the burden of submitting
'evidence suppmiing the hours worked and the rates claimed,' counsel is 'not required to record in
great detail how each minute of his time was expended."' Fischer v. SJB-P.D. Inc., 214 F.3d 1115,
1121 (9th Cir.2000) (quoting Hensley, 461 U.S. at 437 n. 12.). Thus, rather than refusing to award
fees where documentation is insufficient because of block-billing, the comi has the discretion to
"simply reduce[] the fee to a reasonable amount." Id (citing Hensley, 461 U.S. at 433 for the
proposition that a district court can "reduce" the fee award where the documentation is inadequate).

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Here, the only entry in Attorney Ralph Wilborn' s billing records that specifically details time
spent on SSR 13-2p and the DAA materiality analysis issues is 5 hours on August 14, 2016 in
advance of drafting Plaintiffs Reply Brief. Pl's Ex. 1 at 3, ECF 21-1. To be sure, the bulk of
Plaintiffs arguments concerning the ALJ's errors surrounding SSR 13-2p and the DAA materiality
analysis are contained in Plaintiffs 15-page Reply Brief. The issues set f01th in the Reply were
difficult and not routinely encountered by the comt and counsel's Reply briefing was helpful in
obtaining a successful resolution for Plaintiff. Therefore, I conclude that the 25.5 hours in
researching and preparing the Reply Brief requested by Mr. Wilborn is not excessive in this instance.
However, the same is not true for the Opening Brief. Attorney Ralph Wilborn seeks
compensation for approximately 16 hours to review the administrative transcript and 22 hours to
draft the Opening Brief. Attorney Tim Wilborn seeks another 4 hours to write the Opening Brief.
This results in a total of 42 hours to prepare the 27-page Opening Brief where none of the time is
broken down by discrete task or issue, but instead is block-billed. For example, in suppo1t of the
requested fees, Ralph Wilborn provides that on March 21, 2016, he spent 8 hours to "Read and
analyze the ALJ' s decision. Partially read and analyze the 537-page administrative record and outline
potential issues and facts relevant to the opening brief arguments." Pl. Ex. 1at3, ECF No. 21-1.
The following day, Mr. Wilborn indicates he spent 8 hours to "Complete reading and analysis of the
administrative record, and partially research and draft Plaintiffs opening argument." Id On March
23, 2016, Mr. Wilborn indicates that he spent 12 hours to "Continue researching and drafting
Plaintiffs opening brief." Id. Likewise, Tim Wilborn inadequately describes 4 hours of requested
time to "Assist with writing Opening Brief." Pl.'s Ex. 1 at 1, ECF No. 21-1.

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Again, four of the five issues in Plaintiffs Opening Briefare routinely addressed in social
security disability cases and should require less time for experienced attorneys to research and argue.
Examining the Opening Briefitselfdoes not aid in establishing how much time was spent on discrete
issues. Indeed, nearly half the Opening Brief discusses the case background and medical records,
with greater p011ions of the brief devoted to routine issues such as credibility, lay testimony, and
listing equivalency than the ALJ's faulty DAA materiality analysis. Additionally, as the
Commissioner correctly highlights and as I noted in the Opinion and Order, there was absolutely no
record support for Plaintiffs argument that she established equivalency to Listing 12.05C, an
argument such experienced counsel should have readily winnowed. Op. & Order at 20 n.3. Given
the lack of details in the attorneys' entries, the court is unable to parse out the unnecessaty time.
Therefore, I agree with the Commissioner that the 42 requested hours to prepare the Opening Brief
was excessive. Consequently, I find that applying a 25 percent reduction to the requested time for
the Opening Brief reasonably accounts for the excessive time, inadequately described tasks, and
block-billing. See Irwin v. Astrue, No. CV-10-545-HZ, 2011 WL 5865938, *4 (D. Or. Nov. 22,
2011) (applying a 25 percent reduction for block-billed time); Downeyv. Astrue, No. 1:09-cv-00812SKO, 2012 WL 1205824

*15 (E.D. Cal. Apr. 11, 2012) (reducing Ralph Wilborn's time for block-

billing). This results in a reduction of9.5 hours from Attorney Ralph Wilborn (38 hours x .25 = 9.5)
and 1 hour from Attorney Tim Wilborn's (4 hours x .25

II.

=

1) requested 2016 time.

Clerical Tasks
Additionally, Plaintiffs fee request inappropriately includes time for clerical tasks perfo1med

by attorney Tim Wilborn in 2015. It is well-settled that the court may reduce an attorney's hours for
time spent performing clerical work.

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~Missouri

v. Jenkins, 491 U.S. 274, 288 n. 10 (1989) (noting

the dollar value of non-legal work "is not enhanced" because it is performed by a lawyer); Neil v.

Comm 'r Soc. Sec. Admin., 495 F. App'x 845, 847 (9th Cir. 2012) (affirming reductions for clerical
tasks such as preparing and serving summons); Brandt v. Astrue, Civ. No. 08-0658-TC, 2009 WL
1727472, *4 (D. Or. June 16, 2009) (finding that attorney time spent drafting and serving summons
· was non-compensable clerical work). I find the following tasks related to service to be primarily
clerical in nature:
9/14/15
9/15/15
9/15/15
9/25/15
9126115

Review IFP order
review "issued" summons
Draft letter with documents to effect service
Review all 3 service retums
Prepare documents to allege service via ECF

.1

.I
.2
.1
.3

PL 'sEx. 1, ECRNo. 21-1. Accordingly, I deduct .8 hours from Tim Wilbom's requested2015 time.
In summary, I find that 68.4 hours is reasonable under the EAJA. Therefore, Plaintiff is
entitled to an award of $13,104.19 (5.7 hours (TW 4.5 - .80 + RW 2.0) in 2015 x $190.28

=

$1,084.60 plus 62.7 hours (TW 9.7 -1.0 + RW 63.5 - 9.5) in 2016-2017 x $191.70 = $12,019.59).

Ill/
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Ill/
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CONCLUSION
For the reasons stated above, Plaintiff's Application for Fees Pursuant to EAJA (ECF No.
21), is GRANTED in part and DENIED in part. Plaintiff is awarded $13,104.19 in fees pursuant to
the EAJA. Consistent withAstrue v. Ratliff, 560 U.S. 586 (2010), this EAJA award is subject to any
offset allowed under the Treasury Offset Program.
IT IS SO ORDERED.
DATED this __,lt'dayofFEBRUARY, 2017.

Malcolm F. Marsh
United States District Judge

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