Beyer v. Commissioner Social Security Administration

Filing 27

ORDER by Judge Anna J. Brown. The Court ADOPTS in part the Findings and Recommendation 24 , GRANTS in part and DENIES in part Plaintiff's Stipulation 23 for EAJA Fees, and AWARDS Plaintiff's counsel $5,090.01 in attorneys' fees as calculated in Exhibit 1 to this Order. See attached Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

PAULA J. BEYER,

09-CV-I006-HU
Plaintiff,

v.

COMMISSIONER, Social
Security Administration,
Defendant.

RICHARD A. SLY
1001 S.W. Fifth Avenue
Suite 310
Portland, OR 97204
(503)

224-0436

LINDA S. ZISKIN
P.O. Box 2237
Lake Oswego, OR 97035
(503)

889-0472

Attorneys for Plaintiff
1 - ORDER

ORDER

DWIGHT C. HOLTON
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 5 th Avenue, Suite 2900, MiS 901
Seattle, WA 98104
[phone]

Attorneys for Defendant
BROWN, Judge.

Magistrate Judge Dennis James Hubel issued Findings and
Recommendation (#24) on February 25, 2011, in which he recommends
the Court grant in part and deny in part Plaintiff's Stipulation
(#23) for EAJA Fees.

Plaintiff filed timely Objections to the

Findings and Recommendation.
pursuant to 28 U.S.C.

§

The matter is now before this Court

636(b) (1) and Federal Rule of Civil

Procedure 72 (b) .
I .

Background

Plaintiff Paula Beyer brought this action for judicial
review of a final decision of the Commissioner of the Social
Security Administration (SSA) in which he denied Plaintiff's
application for Supplemental Security Income (SSI) under Title
XVI of the Social Security Act.
1 - ORDER

On September 21, 2010, the parties entered into the
stipulated remand of this matter after Plaintiff filed an opening
Memorandum.

In his Memorandum, Plaintiff contended the

Administrative Law Judge (ALJ) erred by failing to properly
consider the opinions of treating and examining physicians,
failing to assess all of Plaintiff's medically determinable
impairments, rendering a flawed residual functional capacity
assessment, and failing to pose a hypothetical to the vocational
expert.

The stipulated remand requires the ALJ (1) to hold a de

novo hearing;

(2) to further evaluate the medical source opinions

of the consu1ative psychologist and Plaintiff's treating
physician;

(3) to evaluate Plaintiff's obesity;

lay-witness statement;

(4) to evaluate a

(5) to reevaluate Plaintiff's past

relevant work, credibility, and residual functional capacity; and
(6) to complete the sequential evaluation process.
On September 21, 2010, Plaintiff filed a Stipulation for
EAJA Fees in which she sought attorneys' fees in the amount of
$5,386.54 pursuant to the Equal Access to Justice Act, 28 U.S.C.
§

2412.
On February 25, 2011, Magistrate Judge Hubel issued Findings

and Recommendation in which he acknowledged Plaintiff had
achieved a favorable result, but he concluded Plaintiff's total
hours of work expended on this matter (30.9) were unreasonable.
In particular, Magistrate Judge Hubel found the following time

1 - ORDER

was not compensable:
clerical tasks,

(1)

.6 hours for purely administrative or

(2) 1.1 hours of attorney Richard Sly's time

spent on tasks duplicated by attorney Linda Ziskin; and (3) 9.3
hours of Ziskin's time spent reviewing the transcript, outlining
the ALJ's decision, and working on the opening memo.

II.

Standard
The court may award EAJA fees for attorney hours reasonably

expended by plaintiff's counsel.

28 U.S.C. § 2412(d) (2) (A).

" [E]xcessive, redundant, or otherwise unnecessary" hours should
be excluded from the fee award.
424, 434

(1983).

Hensley v. Eckerhart,

461 U.S.

See also United States v. Real Property Known

as 22249 Dolorosa Street, 190 F.3d 977, 985 (9 ili Cir.
1999) (same).

"The Court must provide a

'concise but clear

explanation' of its reasons for a fee award."
Astrue, 2009 WL 6040072, at *2

Echtinaw v.

(W. D. Wash. Dec. 9, 2009) (quoting

Gates v. Deukmejian, 987 F.2d 1392, 1398 (9 th Cir. 1992».
There is no hard-and-fast cap on attorney fee
awards that should be applied regardless of the
circumstances.
See, e.g., Patterson, 99 F. Supp.
2d at 1214 n.2 (collecting cases involving
reasonable EAJA fee awards between 20 and 54.5
hours); Gibson-Jones v. Apfel, 995 F. Supp. 825,
827 (N.D. Ill. 1998) (awarding attorney's fees for
65.75 hours of district court litigation). This
Court has previously approved attorney fee awards
in Social Security cases for work exceeding that
requested by plaintiff in this case.
See, e.g.,
Vessel v. Astrue, C08-0949-RSL, Report and
Recommendation (Sept. 19, 2009) (recommending a
reduced fee award for 53.8 hours, which included
48.5 hours for the underlying litigation and 5.3
1 - ORDER

hours for the EAJA fee application), adopted
without objections by Order on Plaintiff's Motion
for EAJA Fees (Oct. 20, 2009); Burleson v. Astrue,
C07-2019RSL, Report and Recommendation (Jan. 13,
2009) (recommending a reduced fee award for 49.3
hours, which included 43.9 hours for the
underlying litigation and 5.4 hours for the EAJA
fee application), adopted without objections by
Order on Plaintiff's Motion for EAJA Fees (Feb. 9,
2009); Riley v. Barnhart, C04-168JLR, Report and
Recommendation (Mar. 8, 2005) (recommending a
reduced fee award for 49.2 hours, which included
45.2 hours for the underlying litigation and 4
hours for the EAJA fee application), adopted
without objections by Order on Plaintiff's Motion
for EAJA Fees (Mar. 28, 2005).
Echtinaw, 2009 WL 6040072, at *3.

III. Discussion
When any party objects to any portion of the Magistrate
Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C.

§

636(b) (1).

See also Dawson v. Marshall,

561

F.3d 930, 932 (9 th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9 th Cir. 2003) (en bane) .
In her Objections, Plaintiff asserts the number of hours
expended by counsel in this matter was reasonable.

Plaintiff

notes her opening brief contained ten arguments against the
Commissioner's. decision.

In addition, the administrative record

was 700 pages and the stipulated remand was unusually detailed
and included six issues that needed to be resolved on remand.

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A.

Clerical tasks
As noted, the Magistrate Judge declined to award

Plaintiff .2 hours of Sly's time and .4 hours of Ziskin's time
both at $175.96 per hour spent on purely administrative or
clerical tasks.

It is clear that "purely clerical work or

secretarial tasks should not be billed at a paralegal or lawyer's
rate, regardless of who performs them."
U.S. 274, 288 n.10 (1989).

Missouri v. Jenkins,

491

See also Costa v. Astrue, No. 90-CV-

6048-HU, 2011 WL 221837, at *1 (D. Or. Jan. 18, 2011) (disallowed
time spent on clerical and administrative tasks from award of
attorneys' fees under EAJA).

Accordingly, the Court adopts the

Magistrate Judge's recommendation to disallow the time Sly and
Ziskin spent on clerical or administrative tasks as identified in
the Findings and Recommendation.

B.

Duplicated time
The Magistrate Judge also declined to award Plaintiff

.7 hours of Sly's time at $172.24 per hour and .4 hours of Sly's
time at $175.96 per hour spent on tasks that duplicated work
performed by Ziskin.

As noted, the Supreme Court has made clear

that redundant hours should be excluded from the fee award.
Accordingly, the Court adopts the Magistrate Judge's
recommendation to disallow the time Sly spent on the duplicative
tasks as identified in the Findings and Recommendation.

1 - ORDER

C.

Reduction of Ziskin's time by 9.3 hours
The Magistrate Judge recommended disallowing 9.3 hours

of Ziskin's time spent reviewing the transcript, outlining the
ALJ's decision, and working on the opening Memorandum because the
total requested 23.3 hours for those tasks "is simply an
unreasonable amount of time to spend preparing for and drafting a
twenty-page opening memorandum which presented no complex or
unique issues."
Recognizing that reasonable minds may differ as to the
amount of time reasonably expended preparing an opening brief in
a Social Security matter, the Court notes Plaintiff's opening
brief contained ten arguments against the Commissioner's
decision.

In addition, the administrative record was 700 pages

and the Stipulated Remand was unusually detailed and included six
issues that needed to be resolved on remand.

Based on this

record, and in the exercise of its discretion, the Court
concludes 23.3 hours was not an unreasonable amount of time to
spend in this matter.

Accordingly, the Court declines to adopt

the recommendation to reduce Ziskin's time by 9.3 hours as set
out in the Findings and Recommendation.

CONCLUSION
For these reasons, the Court ADOPTS in part the Findings and
Recommendation (#24), GRANTS in part and DENIES in part

1 -

ORDER

Plaintiff's Stipulation (#23) for EAJA Fees, and AWARDS
Plaintiff's counsel $5,090.01 in attorneys' fees as calculated in
Exhibit 1 to this Order.
IT IS SO ORDERED.
DATED this 3 rd day of June, 2011.

United States District Judge

1 - ORDER

Beyer v. Commissioner
09-CV-1006-HU
hours

rate

total

Sly disallowed hours

0.6
0.7
1.3

175.96
172.24

105.58
120.57
226.14

Ziskin disallowed

0.4

175.96

70.38

total disallowed

1.7

total fees requested
total disallowed
total fees allowed

296.53

5386.54
(296.53)
5090.01

Exhibit 1