Taylor v. Commissioner of Social Security

Filing 31

ORDER. For the reasons stated above, plaintiff's Application for Fees Pursuant to EAJA (#26), is GRANTED in part and DENIED in part. Plaintiff is awarded $20,292.47 in fees, plus $77.31 in expenses. 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. Signed on 04/18/2012 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
Case No. 3:09-cv-278-MA

STEVEN TAYLOR,

ORDER

Plaintiff,

v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
MARSH, Judge
In this proceeding, plaintiff seeks an award in the amount of
$20,412.31 for attorney fees,

plus $77.40 for expenses under the

Equal Access to Justice Act (EAJA), 28 U.S.C.
the

reasons

that

follow,

plaintiff's

§

2412(d} (l) (A).

application

for

fees

For
is

granted in part and denied in part.
Background
Plaintiff Steven Taylor filed an application for disability
benefits on December 22, 1999, due to an upper back injury, a lower
back injury and a muscle disease.

1 - ORDER

The ALJ issued an unfavorable

decision,

which

the

Appeals

Council

remanded

for

further

consideration of plaintiff's alleged mental impairments.
another hearing,
denying

Following

the ALJ again issued an unfavorable decision

benefits.

Plaintiff

again

Council found that request untimely.

appealed,

but

the

Appeals

After successfully pursuing

a mandamus action in this court, the Appeals Council considered
plaintiff's

request

for

review,

including

additional

medical

evidence from Jeffrey Thompson, M.D., Glen O'Sullivan, M.D., Mark
Greenburg, M.D.,

and Zakir Ali, M.D.

The Appeals Council found

that the additional medical evidence did not provide a basis for
changing the ALJ's decision.
Plaintiff then sought review in this court.
2010

decision,

I

affirmed the ALJ's

plaintiff appealed.

On

December

In a July 12,

unfavorable decision,

28,

2011,

the

and

Ninth Circuit

reversed this court's decision, and remanded the case to the ALJ
for

consideration

of

Dr.

Thompson's

opinion

evidence

and

reconsideration of plaintiff's disability claims.
As

the prevailing party,

current application (#26)
EAJA.

plaintiff subsequently filed the

for fees, costs and expenses under the

The Commissioner does not dispute that plaintiff is the

prevailing party,

that the application is timely,

and does not

appear to contend that its position was substantially justified.!
lIn its response to plaintiff's fee application, the
(continued ... )

2 - ORDER

However, the Commissioner seeks a reduction because the requested
fees

unreasonably

unreasonably

include

include

excessive

time

spent

on

or

duplicative

clerical

or

time,

and

administrative

tasks.
DISCUSSION

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
security

disability

case

that

does

not

present

social

particular

l(... continued)
Commissioner states in its closing paragraph that the request for
fees should be denied because the Commissioner's position was
substantially justified. (Response to Application for Fees (#29)
p. 8.) I note, however, that the Commissioner did not set forth
the relevant legal standards for establishing substantial
justification, or attempt to meet those standards.
Kali v.
Bowen, 854 F.2d 329, 332 (9th Cir. 1988) (government bears burden
of establishing substantial justification under EAJA). Therefore,
to the extent the Commissioner makes such an argument, it is
rejected.

3 - ORDER

difficulty. "

Harden

v.

Commissioner

Soc.

Sec.

Admin.,

497

documenting

the

F.Supp.2d 1214, 1215-16 (D. Or. 2007).
The

fee

appropriate

applicant
hours

bears

expended

in

the

burden

the

litigation

evidence in support of those hours worked.
1397.
that

and

Gates,

must

submit

987 F.2d at

"A fee applicant should maintain billing records in a manner
enables

a

reviewing

reasonably expended."
Or.

of

June 16,

2009).

court

to

easily

Brandt v. Astrue,

identify

the

2009 WL 1727472,

hours
*3 (D.

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 is inadequate, the court may

reduce the requested award.

Hensley, 461 U.S. at 433-34.

Plaintiff seeks a total of $20,412.31 in attorney fees for
115.70 hours expended, broken down by year as follows:
hour for 33.15 hours expended in 2009,
hours

expended

in

expended in 2011.

2010;

and

$180.59

$172.24 per

$175.06 per hour for 37.1
per hour

for

45.45

hours

Plaintiff also seeks $77.40 in expenses for

mailing documents. 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.

fill
fill

4 - ORDER

I.

Clerical Tasks.
In this district,

it is well settled that clerical work or

secretarial tasks are not properly reimbursable as attorney's fees.
Missouri v. Jenkins,
are

typically

491 U.S. 274, 288 n.1

considered

overhead

(1989) (clerical tasks

expenses,

and

are

not

reimbursable; "purely clerical or secretarial tasks should not be
billed at a paralegal [or lawyer] rate"); Aranda v. Astrue, 2011 WL
*6 (D. Or. June 8,

2413996,
filing

are

not

compensable

2011) (finding clerical tasks such as
as

EAJA

attorney

fees);

Beyer

v.

Commissioner, Soc. Sec. Admin., 2011 WL 2222132, *2 (D. Or. June 6,
2011) (same); Costa v. Astrue, 2011 WL 221837, *2 n.1 (D. Or. Jan.
18, 2011) (same) .
The

Commissioner

specifically contends

that

plaintiff

has

erroneously included 2.60 hours of time expended in preparing EAJA
documents and .8 hours for preparing and serving the summons.
I disagree with the Commissioner that preparation of the EAJA
documents are clerical,

and thus not compensable.

The billing

entries themselves do not suggest that the nature of this work was
purely clerical in nature.

Also,

it is not unreasonable for an

attorney to prepare a time sheet for submission in support of a fee
application.

This is particularly true where, as here, there is no

separate entry for preparing the memorandum in support of the fees.
See Costa,

5 - ORDER

2011 WL 221837 at *3.

Therefore,

I

do not find 2.6

hours

to be excessive

for preparing. the motion and supporting

materials for the EAJA fee request.
A review of the billing entries reveals that Mr. Wilborn has
billed for preparing and serving summonses and related documents,
tasks which I consistently have found to be clerical in nature.
Aranda, 2011 WL 2413996 at *6; Neil v. Astrue, 2011 WL 4406311 (D.
Or.

Sept.

21,

2011);

accord

Brandt,

2009

WL

1727472

at

*4.

Consistent with the practice in this district to exclude time for
preparing summonses and serving the defendant, and for the reasons
set forth in Brandt and Neil, I find the following entries must be
excluded:
4/1/09
4/2/09
4/17 /09

Draft Summons and have them issued
by court

.2

Prepare service documents for
3 government officers

.3

Prepare documents to allege service
via ECF

.2

These reductions result in a .7 hour reduction for time billed in
2009.

II.

Excessive Fees.
The Commissioner argues that plaintiff has duplicated efforts

by hiring two experienced attorneys, Tim Wilborn and Ralph Wilborn.
The Commissioner also argues that the fees expended are excessive,
given that the case did not involve new or complex issues,
instead

was

6 - ORDER

routine.

According

to

the

Commissioner,

but

Ralph

Wilborn's billing of 40.75 hours at the district court and another
53.25 at the Ninth Circuit was excessive.

I disagree.

As plaintiff correctly notes, plaintiff's attorneys did not
appear

to

duplicate

their

efforts,

but

rather

Ralph

Wilborn

researched and drafted the district court and appellate briefing
while Tim Wilborn handled the non-briefing aspects of the case.

I

recognize that 115 hours is substantially higher than the average
20 to 40 hours typically expended.
due

to

plaintiff's

successful

However, this is undoubtedly

appeal

to

the

Ninth

Circuit.

Moreover, the record in this case was a bit longer than average,
and plaintiff challenged numerous issues.
I

have carefully reviewed and compared the briefing submitted

by plaintiff's
Circuit.

I

attorneys

to this

court,

as

well

as

the Ninth

note that the bulk of plaintiff's opening brief to the

Ninth Circuit is substantially similar to the briefing submitted to
this

court.

However,

in

reviewing the billing entries,

Ralph

Wilborn expended 15 hours in preparing plaintiff's Ninth Circuit
opening brief,
task.

which appears to be a reasonable amount for that

The bulk of Ralph Wilborn's fees at the Ninth Circuit level

came in preparing plaintiff's Reply briefing.
briefing does not reveal any redundancies.

A comparison of that
Additionally,

I

note

that the Commissioner does not make any further specific challenges
to plaintiff's fee request.

7 - ORDER

Therefore, I find the Commissioner has

not established that any further reductions in the hours expended
by plaintiff are warranted.
In summary, in light of the modest reduction discussed above,
I

find a

total

of 115 hours

to be reasonable under the

EAJA.

Therefore, plaintiff is entitled to an award of $20,292.47 in fees
(32.45 hours in 2009 X $172.24
$175.06 = $6,494.73,

=

$5,589.92, 37.1 hours in 2010 X

45.45 hours in 2011 X $180.59 = $8,207.82),

and $77.40 in expenses.
CONCLUSION
For the reasons stated above, plaintiff's Application for Fees
Pursuant to EAJA

(#26),

is GRANTED in part and DENIED in part.

Plaintiff is awarded $20,292.47 in fees, plus $77.31 in expenses.
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 ~ day of APRIL, 2012.

Malcolm F. Marsh
United States District Judge

8 - ORDER