Aranda et al v. Commissioner Social Security Administration
Filing
44
OPINION AND ORDER: Plaintiff's Application for Fees Pursuant to EAJA 32 is GRANTED in part and DENIED in part. Plaintiff is awarded $13,508.73. Signed 6/7/11 by Judge Malcolm F. Marsh. (See formal 15-Page Opinion & Order). (mkk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
STEPHANIE ARANDA, Beneficiary
of the claim of Linda Clark,
deceased,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
BRUCE W. BREWER
419 5th Street
Oregon City, OR 97045
Attorney for Plaintiff
DWIGHT C. HOLTON
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-290
LEISA A. WOLF
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
CV. 08-340-MA
OPINION AND ORDER
MARSH, Judge
In this proceeding, plaintiff seeks an award of fees and costs
in the amount of $16,070.32 under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d)(1)(A).
Because I find that the
position of the Commissioner was not substantially justified,
plaintiff’s application for fees is granted in part and denied in
part.
Background
On July 19, 2002, Linda Clark filed an application for
disability income benefits under Title II of the Social Security
Act.
Clark contended she was disabled from March 31, 1995 through
December 31, 2001, due to depression, social problems and memory
problems.
Following a hearing, the ALJ found Clark was not
disabled in a decision dated January 30, 2004.
Clark sought
judicial review in this court, and the case was remanded to the ALJ
to further develop the medical record by ordering a consultative
examination, to assess the correct disability onset date, and to
consider
medical
evidence
submitted
by
plaintiff’s
treating
physician following the hearing.
On February 4, 2007, Clark died as a result of a methadone
overdose.
On February 28, 2007, after a second hearing, the ALJ
again found Clark was not disabled.
Plaintiff Stephanie Aranda,
Clark’s daughter and beneficiary, sought judicial review for a
2 - OPINION AND ORDER
second time.
On June 22, 2009, I affirmed the ALJ’s decision
denying benefits.
Plaintiff appealed.
On November 30, 2010, on de novo review, a split panel of the
Ninth Circuit Court of Appeals reversed and remanded the case for
the calculation and payment of benefits based on an onset date of
October 31, 1999.
The majority concluded that the ALJ failed to
provide specific and legitimate reasons for
rejecting the opinion
of Clark’s treating psychiatrist Dr. Suckow in favor of examining
psychologist Dr. Stoltzfus.
that
the
ALJ
failed
to
Additionally, the majority determined
apply
the
factors
in
20
C.F.R.
§
404.1527(d)(2)(i)-(ii), a required evaluation when a treating
physician’s opinion is not given controlling weight.
As the prevailing party, plaintiff subsequently filed the
current application (#32) for fees, costs and expenses under the
EAJA. The Commissioner opposes the award of fees, arguing that its
position was substantially justified, and therefore, plaintiff is
not
entitled
to
fees
under
the
EAJA.
Alternatively,
the
Commissioner contends that the amount of fees should be reduced
because the amount is unreasonable and improperly includes time
spent on clerical or administrative tasks.
DISCUSSION
I.
The Commissioner’s Position Was Not Substantially Justified.
Under the EAJA, a prevailing party is entitled to recover
attorneys fees “unless the court finds that the position of the
3 - OPINION AND ORDER
United
States
was
substantially
circumstances make an award unjust.”
justified
or
that
special
28 U.S.C. § 2412(d)(1)(A).
“The test for whether the government is substantially justified is
one of reasonableness.”
Gonzales v. Free Speech Coalition, 408
F.3d 613, 618 (9th Cir. 2005)(internal quotation omitted).
The
Government’s position need not be justified to a high degree, but
to a degree that could satisfy a reasonable person.
Pierce v.
Underwood, 487 U.S. 552, 562-63 (1988); Bay Area Peace Navy v.
United States, 914 F.2d 1224, 1230 (9th Cir. 1990).
A substantially justified position does not necessarily mean
a correct position; instead there may be a dispute over which
reasonable minds could differ.
Gonzales, 408 F.3d at 618; Le v.
Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008).
A position is
substantially justified if it has a reasonable basis in law and
fact.
Pierce, 487 U.S. at
565; Hardisty v. Astrue, 592 F.3d 1072,
1079 (9th Cir. 2010), cert. denied, 2011 WL 1832858 (U.S. May 16,
2011); Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). The
government
bears
justification.
the
burden
of
demonstrating
substantial
Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).
Here, the Commissioner contends that plaintiff should not be
awarded fees under the EAJA because its position with respect to
Dr. Suckow and Dr. Stoltzfus was substantially justified.
Dr.
Suckow, plaintiff’s treating psychiatrist, opined in 2004 and 2006
that Clark was disabled and unable to work due to anxiety and
4 - OPINION AND ORDER
depression.
The ALJ accorded Dr. Suckow’s opinion little weight,
relying instead upon the opinion of Dr. Stoltzfus.
Dr. Stoltzfus
conducted a psychological consultation on June 13, 2006.
Stoltzfus
administered
malingering
or
plaintiff’s
records.
an
extreme
The
MMPI,
symptom
ALJ
which
yielded
exaggeration,
gave
Dr.
evidence
and
Stoltzfus’
Dr.
of
examined
opinion
significant weight because it was based upon objective findings and
a thorough review of Clark’s records.
According to two members of the Ninth Circuit panel, the ALJ’s
assessment of Dr. Suckow’s opinion was inadequate.
The majority
found that the ALJ improperly afforded Dr. Stoltzfus’ opinion
greater weight than that of Dr. Suckow.
The majority noted that
Dr. Suckow treated Clark for six years and based his opinion on
extensive observation and evaluation.
In contrast, Dr. Stoltzfus
met with Clark only one time, four and half years after the
relevant time period, lessening that opinion’s persuasiveness. The
majority concluded that the ALJ failed to apply the factors of 20
C.F.R. § 404.1527(d)(2)(i)-(ii), which heavily favored Dr. Suckow’s
opinion, and thus failed to supply specific and legitimate reasons
for rejecting Dr. Suckow’s opinion.
Judge Clifton wrote a dissenting opinion, contending that the
ALJ offered a host of specific and legitimate reasons to discredit
Dr. Suckow’s opinion, including those the ALJ incorporated by
reference in the ALJ’s 2004 decision.
5 - OPINION AND ORDER
Judge Clifton was not
troubled by the fact that Dr. Stoltzfus met with plaintiff four and
a half years after the date Clark was last insured because there
were no allegations that Clark’s condition had improved over time.
In this proceeding, the Commissioner contends that it was
substantially justified in defending the ALJ’s assessment of the
doctors’ opinions because there was a “genuine dispute.” According
to the Commissioner, its position was reasonable because this court
affirmed the ALJ’s decision and at least one member of the Ninth
Circuit panel dissented.
I disagree for two reasons.
First, the fact that another court agreed or disagreed with
the
Commissioner
does
not
establish
position was substantially justified.
whether
the
government’s
Pierce, 487 U.S. at 569.
Second, as plaintiff correctly indicates, the government’s
position must have a reasonable basis in law and fact.
Here, the
Ninth Circuit determined that the ALJ failed to apply the factors
set forth in 20 C.F.R. § 404.1527(d).
Under that regulation, a
treating physician’s opinion is given controlling weight, unless it
is inconsistent with other substantial evidence, or is not well
supported.
20 C.F.R. § 404.1527(d); Orn v. Astrue, 495 F.3d 625,
631 (9th Cir. 2007).
If the treating physician’s opinion is
contradicted, the ALJ must consider the factors set forth in 20
C.F.R. § 404.1527 to determine what weight the treating physician’s
opinion will be given.
404.1527(d)).
Orn, 495 F.3d at 631 (citing 20 C.F.R. §
The majority of the panel concluded that the ALJ
6 - OPINION AND ORDER
failed to apply the required factors.
While the Commissioner is
correct that there may have been a genuine dispute about whether
the
reasons
supplied
by
the
ALJ
amounted
to
“specific
and
legitimate” reasons, that dispute does not relieve the ALJ of his
duty to perform the analysis required by 20 C.F.R. § 404.1527(d).
Based on the Ninth Circuit’s decision, I find that the
Commissioner’s position that the ALJ properly assessed the medical
opinions was without substantial justification because it was not
reasonably based in law in light of the requirements of 20 C.F.R.
§ 404.1527(d).
I decline to address the Commissioner’s remaining
arguments.
II.
Reasonableness of Plaintiff’s Attorney’s Fee Request.
An award of attorney fees under the EAJA must be reasonable.
28 U.S.C. § 2412(d)(2)(A).
The court has an independent duty to
review the fee request to determine its reasonableness. Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983); Moreno v. City of Sacramento,
534 F.3d 1106, 1111 (9th Cir. 2008); Gates v. Deukmejian, 987 F.2d
1392, 1397 (9th Cir. 1992).
The starting point for a reasonable
fee is the number of hours expended multiplied by a reasonable
hourly rate.
Hensley, 461 U.S. at 434; Atkins v. Apfel, 154 F.3d
986, 988 (9th Cir. 1998).
This court recognizes a range of 20 to
40 hours as “a reasonable amount of time to spend on a social
security
disability
7 - OPINION AND ORDER
case
that
does
not
present
particular
difficulty.”
Harden
v.
Commissioner
Soc.
Sec.
Admin.,
497
documenting
the
F.Supp.2d 1214, 1215-16 (D. Or. 2007).
The
fee
applicant
bears
the
burden
of
appropriate hours expended in the litigation and must submit
evidence in support of those hours worked.
1397.
Gates, 987 F.2d at
The party 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. Id. at 1397-98.
Where
documentation
requested award.
is
inadequate,
the
court
may
reduce
the
Hensley, 461 U.S. at 433-34.
Plaintiff seeks a total of $16,070.32 in attorney fees for
92.35 hours expended, broken down by year as follows:
$172.85 per
hour for 26.1 hours expended in 2008, $172.24 per hour for 17.3
hours expended in 2009, $175.06 per hour for 48.95 hours expended
in 2010 and 2011.
The Commissioner does not object to the hourly
rate, costs or expenses, and I note that the rates are within the
statutory cap provided for under the EAJA.
However, the Commissioner contends that a total of 92.35
hours for this matter is unreasonable because plaintiff’s four
attorneys duplicated their efforts. Additionally, the Commissioner
submits that the fee request inappropriately includes time spent on
clerical matters.
////
////
8 - OPINION AND ORDER
A.
Excessive Fees.
The Commissioner specifically challenges the entries for
preparing the opening brief and reply brief to the Ninth Circuit by
attorneys Tim Wilborn and Ralph Wilborn, contending that counsel
has duplicated their efforts.
Reviewing the billing entries
prepared by counsel, it appears that attorney Ralph Wilborn did not
perform much work on the case until it was appealed to the Ninth
Circuit.
At that point, attorney Ralph Wilborn researched and
drafted the Ninth Circuit opening brief (25 hours) and reply brief
(13.25 hours).
Attorney Tim Wilborn appears to have finalized and
filed the Ninth Circuit briefing (4.4 hours), as well as handling
the case at district court.
Associate Jeffrey Narvil appears to
have prepared the bulk of plaintiff’s briefing to the district
court (18.5 hours).
I begin by noting that 92.35 hours is substantially higher
than the average 20 to 40 hours typically expended.
Having
reviewed the billing entries, undoubtedly many additional hours
resulted from plaintiff’s successful appeal to the Ninth Circuit.
However, I agree with the Commissioner that there are some
redundancies in preparation of plaintiff’s briefing to the district
court and the Ninth Circuit.
I have reviewed and compared the
briefing submitted by the plaintiff’s attorneys.
Plaintiff’s
opening brief to the Ninth Circuit consists of 30 pages. The first
two
pages
contain
9 - OPINION AND ORDER
standard
boilerplate
language
concerning
jurisdiction and the standard of review.
Pages 2-11 of the Ninth
Circuit opening brief contain a statement of the case, including a
factual summary and summary of the hearing testimony.
Comparing
pages 2-11 of that brief with plaintiff’s opening brief filed in
this court reveals that they are substantially similar, and in
places, the Ninth Circuit brief is taken verbatim from the district
court briefing.
Continuing with this analysis, page 12 of the Ninth Circuit
opening brief contains boilerplate language concerning the Social
Security Administration’s sequential evaluation, and pages 13 and
14 contain a lengthy quote from the ALJ’s opinion and a brief
summary of the argument.
The remaining 15 pages of the Ninth
Circuit opening brief (pages 15-30) contains the analysis of
plaintiff’s argument.
Of these pages, approximately eight pages
contain new analysis, primarily describing errors made by the
district court.
However, pages 23-30 contain nearly the identical
analysis as that presented in plaintiff’s opening brief in the
district court.
Indeed, numerous portions of the Ninth Circuit
brief are quoted verbatim from the district court briefing.
In
sum, at least half of the Ninth Circuit opening brief is identical,
or substantially similar, to that submitted at the district court.
The point of this comparison is that attorney Ralph Wilborn
submits billing records showing that he expended 25 hours for
preparing the Ninth Circuit opening brief.
10 - OPINION AND ORDER
Meanwhile, attorneys
Tim Wilborn and Jeffrey Narvil billed 22.1 hours for preparing
plaintiff’s district court opening brief.
Given Ralph Wilborn’s
27 years of experience, and that half of the Ninth Circuit brief is
taken nearly verbatim from the district court brief, I find the 25
hours expended by him to be excessive.
This is especially true in
light of the fact that Mr. Narvil was responsible for combing
through the administrative record in the first instance, and did so
in fewer hours.
Aside from contending that the district court
erred, plaintiff argued the same issue at both the district court
and Ninth Circuit–-that the ALJ improperly analyzed the treating
physician’s opinion.
This issue is not novel or complex, but was
routine by any measure and rested on clearly established law.
Accordingly, I find 25 hours to be unreasonable, and must be
reduced.
Because approximately half of plaintiff’s opening brief in the
Ninth Circuit is taken from the brief filed in the district court,
I find that a 50 percent reduction to 12.5 hours for preparing the
Ninth Circuit opening brief is appropriate.
See Costa v. Astrue,
2011 WL 221837, *2 (D. Or. Jan. 18, 2011)(reducing 25 hours spent
on preparing opening brief in social security case to 12 hours in
EAJA application); Welch v. Metropolitan Life Ins. Co., 480 F.3d
942, 949 (9th Cir. 2007)(finding that district court’s reduction of
5 hours for unnecessary analysis was appropriate).
11 - OPINION AND ORDER
Although
the
Commissioner
also
alleges
redundancies
in
preparing the reply briefs in the district court and the Ninth
Circuit, a comparison of that briefing does not support such a
finding.
I find the Commissioner has not established that a
reduction in the hours expended on the reply briefing is warranted.
B.
Block Billing.
A fee applicant should maintain billing records in a manner
that enables a reviewing court, and opposing counsel, to easily
identify the hours reasonably expended on a particular task.
Hensley, 461 U.S. at 437.
Block billing, which bundles tasks in a
block of time, makes it extremely difficult for a court to evaluate
the reasonableness of the number of hours expended.
See Role
Models America, Inc. v. Brownlee, 353 F.3d 962, 971 (D.C. Cir.
2004).
The court may reduce the requested fee based on this lack
of specificity. Fischer v. SJF-P.D. Inc., 214 F.3d 1115, 1121 (9th
Cir. 2000)(district courts may reduce hours where requests are
poorly documented).
See Lee v. Commissioner, 2009 WL 3003858, *1
(D. Or. Sept. 17, 2009)(reducing EAJA award by 10 percent to
account for block billing); Gadberry v. Astrue, 2009 WL 2983086,
*1-2 (D. Or. Sept. 15, 2009)(reducing EAJA fee request by 10 hours
to account for block billing); Brandt v. Astrue, 2009 WL 1727472,
*4 (D. Or. June 16, 2009)(reducing EAJA block billed hours by 50
percent to account for poorly documented billing); Taylor v. Albina
Community Bank, 2002 WL 31973738, *5 (D. Or. Oct. 2, 2002)(reducing
12 - OPINION AND ORDER
attorney fees by half due to block billing and excessive hours).
See also Message from the Court Regarding Attorney Fee Petitions,
Dated Feb. 11, 2009, found at ord.uscourts.gov/court-policies
(stating that fee petitions which contain inadequate detail or fail
to separate time for individual tasks may be denied, at least in
part).
Attorneys Ralph Wilborn and Jeffrey Narvil have provided some
block entries for their time.
I find that Mr. Narvil and Ralph
Wilborn have failed to describe their time with adequate detail,
and specific to each task performed.
However, because plaintiff’s
case presented one primary issue, and I find that the overall
amount of hours Mr. Narvil spent to be reasonable, I decline to
reduce his hours for block billing.
I also decline to further
reduce Ralph Wilborn’s hours, as it was the appeal to the Ninth
Circuit
which
plaintiff.
ultimately
achieved
a
successful
result
for
I caution counsel to provide additional detail and
avoid block billing in any future fee petitions.
C.
Clerical Time.
Plaintiff concedes that one hour of time was inappropriately
billed for the preparing and serving summonses in 2008, and the
court will reduce the hours expended and fee award on that basis.
Additionally, billing entries reveal a few other entries
reflecting time spent on clerical tasks, namely filing documents.
Missouri v. Jenkins, 491 U.S. 274, 288 n.1 (1989)(clerical tasks
13 - OPINION AND ORDER
are
typically
considered
overhead
expenses,
and
are
not
reimbursable; “purely clerical or secretarial tasks should not be
billed at a paralegal [or lawyer] rate”); see also Costa,
2011 WL
221837 at *2 n.1 (noting that filing documents is a clerical task).
In several instances, the time spent filing the document was not
separated from the time spent preparing the document. Accordingly,
the court reduces the following eight entries by Tim Wilborn by .1
each for the clerical work:
8/24/09
File Notice of Appeal and related documents
.7
9/01/09
File substitution of Counsel
.2
9/02/09
File appearance of Counsel
.2
9/02/09
File CADS
.2
9/15/09
File transcript order form
.2
2/26/10
Finalize and file Appellant’s Opening Brief
1.0
5/24/10
Finalize and File Ninth Circuit Reply Brief
.2
12/08/10
File bill of costs
.2
These reductions result in a .5 hour reduction in 2009, and a
.3 hour reduction in 2010.
The court also deducts .3 hours of time
from Tim Wilborn’s hours in 2008; the billing entries show .3 hours
were expended in 2007.
Plaintiff offers inadequate support for
time billed in 2007.
In summary, I find a total of 77.75 hours to be reasonable
under the EAJA.
Therefore, plaintiff is entitled to an award of
$13,508.73 (24.8 hours in 2008 X $172.85 = $4,286.68, 16.8 hours in
14 - OPINION AND ORDER
2009 X $172.24 = $2,893.63, 36.15 hours in 2010 & 2011 X $175.06
=$6,328.42).
CONCLUSION
For the reasons stated above, plaintiff’s Application for Fees
Pursuant to EAJA (#32), is GRANTED in part and DENIED in part.
Plaintiff
is
awarded
$13,508.73.
Consistent
with
Astrue
v.
Ratliff, 130 S.Ct. 2521, 2527-28 (2010), this EAJA award is subject
to any offset allowed under the Treasury Offset Program.
IT IS SO ORDERED.
DATED this _7__ day of JUNE, 2011.
_/s/ Malcolm F. Marsh_______
Malcolm F. Marsh
United States District Judge
15 - OPINION AND ORDER
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