Irwin v. Commissioner, Social Security Administration
Filing
43
OPINION AND ORDER: This court GRANTS in part and DENIES in part Plaintiff's counsel's application for fees 31 pursuant to the EAJA and awards attorneys' fees in the amount of $16,612.86. See 9-page opinion and order attached. Ordered by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
BRENDA M. IRWIN
No. CV-10-545-HZ
Plaintiff,
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Bruce W. Brewer
LAW OFFICES OF BRUCE W. BREWER, PC
419 Fifth Street
Oregon City, OR 97045
Attorney for Plaintiff
Adrian L. Brown
U.S. ATTORNEY'S OFFICE
District of Oregon
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
1 - OPINION AND ORDER
David J. Burdett
SOCIAL SECURITY ADMINISTRATION
701 Fifth Avenue, Suite 2900 M/S 901
Seattle, WA 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Now before me is an application for fees (doc. #31) pursuant to the Equal Access to
Justice Act ("EAJA") 28 U.S.C. § 2412 et. seq., filed by Brenda M. Irwin ("Plaintiff" or "Irwin").
Plaintiff's counsel seek an award of fees and costs in the amount of $18,609.91 for 103.90 of
hours expended on Plaintiff's underlying case. Pl.'s Mem. In Supp. of Pl.'s Application for Fees
Pursuant to the Equal Access to Justice Act ("Pl.'s Mem."), p. 1, 6. For the reasons that follow,
Plaintiff's counsel's application for fees is GRANTED in part and DENIED in part.
BACKGROUND
Plaintiff was initially found disabled with ankylosing spondtylitis, having an onset date
of February 28, 1993, and an entitlement date of October 1995. Plaintiff's benefits, however,
were ceased in March 2000. On March 30, 2001, Plaintiff protectively reapplied for Title II
disability insurance benefits and Title XVI Supplemental Security Income ("SSI"), alleging an
onset date of September 1, 2000. Her application was denied, and a hearing before an
administrative law judge ("ALJ") of the Social Security Administration("SSA") was held on
February 2, 2004. On July 27, 2004, the ALJ found Plaintiff was not disabled, and the Appeals
Council denied her request for review on January 26, 2005. Plaintiff filed a civil action in the
United States District Court for the District of Oregon. On November 16, 2006, the Honorable
Ancer L. Haggerty reversed and remanded the ALJ's final decision.
2 - OPINION AND ORDER
On remand, ALJ John J. Madden, Jr. issued a fifty-eight page decision on May 2, 2008,
finding Plaintiff not disabled. Although Plaintiff filed exceptions to the ALJ's decision, the
Appeals Council declined to assume jurisdiction.
Plaintiff filed a second action in the United States District Court for the District of
Oregon on May 13, 2010, seeking judicial review of the ALJ's May 2, 2008, decision pursuant to
the Social Security Act (the "Act"), 42 U.S.C. § 405(g). On January 18, 2011, Plaintiff filed her
opening brief contending the ALJ's decision should be reversed and remanded for the immediate
payment of benefits. On March 24, 2011, the Commissioner of Social Security (the
"Commissioner") filed a brief in opposition to Plaintiff's opening brief, and on May 26, 2011,
Plaintiff filed her reply brief. The medical and other evidence in the record spans over 1,800
pages.
On July 1, 2011, I issued an Opinion and Order (doc. #29) reversing the decision of the
Commissioner and remanding this matter pursuant to sentence four of 42 U.S.C. § 405(g) for the
immediate calculation and award of benefits. Because Plaintiff was the prevailing party,
Plaintiff's counsel subsequently filed the current application for fees under EAJA.
STANDARD
"For the court to award attorney's fees and costs pursuant to the EAJA, it must be shown
that (1) the plaintiff is the prevailing party; (2) the government has not met its burden of showing
that its positions were substantially justified or that special circumstances make an award unjust;
and (3) the requested attorney's fees and costs are reasonable." Perez-Arellano v. Smith, 279
F.3d 791, 793 (9th Cir. 2002) (citing 28 U.S.C. § 2412(d)(1)(A)). A "prevailing party" is one
who has been awarded relief by the court "on the merits of at least some of his claims."
3 - OPINION AND ORDER
Hanrahan v. Hampton, 446 U.S. 754, 758 (1980). A prevailing plaintiff, however, is not entitled
to attorneys' fees under EAJA if "the Commissioner shows that his position with respect to the
issue on which the district court based its remand was 'substantially justified.'" Lewis v.
Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). The Commissioner's positions are substantially
justified "if his position met the traditional reasonableness standard–that is justified in substance
or in the main, or to a degree that could satisfy a reasonable person." Id. (internal citations and
quotation marks omitted). "The Supreme Court has explained that 'a position can be justified
even though it is not correct, and . . . can be substantially . . . justified . . . if it has a reasonable
basis in law and fact.'" Id. (internal citations and quotation marks omitted). The Commissioner's
"failure to prevail does not raise a presumption that its position was not substantially justified."
United States v. Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002) (citation and internal quotation
marks omitted).
Lastly, an award of attorneys fees under 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). Under EAJA, the hourly rate for attorneys' fees is capped at $125.00, but the court may
make adjustments for cost of living or other appropriate "special factor[s]." 28 U.S.C. §
2412(d)(2)(A). With respect to the number of hours expended on a case, "[t]here is some
consensus among the district courts [within the Ninth Circuit] that 20-40 hours is a reasonable
4 - OPINION AND ORDER
amount of time to spend on a social security case that does not present particular difficulty."
Harden v. Comm'r Soc. Sec. Admin., 497 F. Supp. 2d 1214, 1215-16 (D. Or. 2007) (citations
omitted).
"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." Gates, 987 F.2d at
1397 (citation omitted). "The party opposing the fee application has a burden of rebuttal that
requires submission of evidence to the district court challenging the accuracy and reasonableness
of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Id.
at 1397-98 (citation omitted). Where documentation is inadequate, the court may reduce the
requested award. Hensley, 461 U.S. at 433-34.
DISCUSSION
Plaintiff's counsel seek a total of $18,609.91 in attorneys fees for 103.90 of hours
expended at an hourly rate of $179.51 and $175.06, for 2011 and 2010, respectively. The
Commissioner does not argue Plaintiff's counsel's application is untimely, the hourly rate
requested is improper, or the Commissioner's position was substantially justified. Because
Plaintiff's requested rates are within the statutory cap provided for under the EAJA and because
the Commissioner does not contest the hourly rates sought by Plaintiff, I conclude the hourly
rates sought by Plaintiff's counsel are reasonable in this instance.
The Commissioner, however, objects to Plaintiff's counsel's requested hours because they
are unreasonable and inadequately explained. Def.'s Resp. to Pl.'s Mot. for Attorneys Fees
Under the EAJA ("Resp."), p. 4. Specifically, the Commissioner urges this court to deduct a
total of 44.5 hours from Plaintiff's counsel's fee request, arguing the entries associated with those
5 - OPINION AND ORDER
hours amount to block billed hours which do not clearly set forth what tasks were done, when, or
why they were reasonably necessary.
Broken down, the 44.5 hours to which the Commissioner objects are those documented
by Ralph Wilborn ("Wilborn") and are composed of the following entries: (1) Five entries in
January 2011 totaling 30.5 hours, each of which note, "Continue research and drafting of
Plaintiff's Opening Brief and fact-check each assertion made by the ALJ that is being
addressed[;]" (2) one entry in May 2011 for 8.0 hours stating, "Partially research and draft
Plaintiff's Reply Brief[;]" and (3) one entry in May 2011 for 6.0 hours stating, "Complete
research and draft Plaintiff's Reply Brief." Id.; Decl. of Ralph Wilborn in Supp. of Appl. for
Fees Pursuant to the EAJA ("Wilborn Decl."), p. 2.
"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." Aranda v. Astrue, No. CV. 08–340–MA, 2011 WL 2413996, at * 5(D. Or. 2011) (citing
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."
Id. (citation omitted); Harolds Stores, Inc. v. Dillard Dep't Stores, Inc., 82 F.3d 1533, 1554 n.15
(10th Cir. 1996) ("block billing" refers to "the time-keeping method by which each lawyer and
legal assistant enters the total daily time spent working on a case, rather than itemizing the time
expended on specific tasks"). "[T]he district court can 'reduce' the fee award where the
documentation is inadequate." Fischer v. SJF–P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000)
(citing Hensley, 461 U.S. at 433); see also Lee v. Comm'r, Soc. Sec. Admin., Civil No. 08-6132JO, 2009 WL 3003858, *1 (D. Or. 2009) (reducing EAJA award by ten percent to account for
6 - OPINION AND ORDER
block billing); Gadberry v. Astrue, Civil No. 08-314-KI, 2009 WL 2983086, *2 (D. Or. 2009)
("reduc[ing] plaintiff's attorney's fee request by 10 hours to account for the block"); Brandt v.
Astrue, Civil No. 08-0658-TC, 2009 WL 1727472, *4 (D. Or. 2009) (reducing "block billed
hours" by fifty percent); Taylor v. Albina Cmty. Bank, No. CV-00-1089-ST, 2002 WL
31973738, *5 (D. Or. 2002) (reducing defendant's block billing by fifty percent).
In a sworn declaration Wilborn emphasizes he has "competence and expertise as a
[s]ocial [s]ecurity disability law practitioner." Wilborn Decl., p. 3. He states he has "specialized
in [s]ocial [s]ecurity law" since 1984, served more than three years as an administrative law
judge for the SSA, represents only social security claimants in federal court proceedings, and is
even the author of a social security handbook. Id. In their reply Plaintiff's counsel contend the
lengthy briefs, voluminous ALJ decision, nearly two-thousand-page administrative record, and
fact that Wilborn had never previously addressed some of the issues argued in the underlying
case demonstrate the hours requested are reasonable. Plaintiff's counsel also cite a number of
cases for the proposition that spending over forty hours in even simple routine cases is
reasonable.
I recognize Wilborn's experience and expertise in social security law. I also recognize
the briefs and administrative record in this case were unusually lengthy, and thus would present
more difficulty than would a more "routine" social security case. Harden, 497 F. Supp. 2d at
1216 (citations omitted). It is Wilborn's block billing, however, which gives me pause.1
1
Plaintiff's counsel argue they have not block billed a single entry. I disagree and find
the entries to which the Commissioner objects are properly classified as block billing entries.
7 - OPINION AND ORDER
Plaintiff's counsel cite Fischer, 214 F.3d at 1121 for the proposition that all of Wilborn's
documented tasks in this instance are compensable. A careful reading of Fischer, however, does
not support Plaintiff's counsel's position. In Fischer, 214 F.3d at 1121-22, the Ninth Circuit
found the lower court's denial of fees in its "entirety" amounted to an abuse of discretion because
the court could have "simply reduced the fee to a reasonable amount" or requested more detailed
information which it knew was "readily available." In contrast to Fischer, nothing in the record
before me indicates that more detailed information is readily available. More important, I find a
reduction of Plaintiff's counsel's fees appropriate in this instance because Wilborn's block billing
entries fail to provide sufficient explanation and specificity that would allow this court to
perform its duty of assessing the reasonableness of the time Wilborn spent on each task. See
Hensley, 461 U.S. at 433-34.
Plaintiff's counsel contend that this court should adopt the rationale in Vessell v. Astrue,
No. C08-0949RSL, 2009 WL 3400660, at *3 (W.D. Wash. 2009) and grant its request for
attorneys fees in its entirety. That case, however, is distinguishable on its facts. The block
billing at issue in that case combined only the entries for drafting the opening brief and reply
brief. Id. It did not involve the bundling of vastly different entries such as researching, drafting,
and fact-checking or researching and drafting as is the case here. Wilborn Decl., p. 2.
In light of the above, I find that a twenty-five percent reduction in the disputed hours, or
11.125 hours (25% x 44.5) results in a reasonable number of billable hours under the EAJA. The
reduction of 11.125 hours from Plaintiff's total requested hours results in a total of 92.775
(103.90-11.125) billable hours, which I find well above the twenty to forty hours generally
expended on routine social security cases within this district and commensurate with the
8 - OPINION AND ORDER
difficulties of the underlying case highlighted by Plaintiff's counsel. Accordingly, Plaintiff's
counsel's total requested fee is reduced by $1,997.05 (11.125 x $179.51), thereby resulting in a
total award of $16,612.86 ($18,609.91-$1,997.05).
CONCLUSION
For the reasons discussed above, this court GRANTS in part and DENIES in part
Plaintiff's counsel's application for fees (doc. #31) pursuant to the EAJA and awards attorneys'
fees in the amount of $16,612.86.
IT IS SO ORDERED.
Dated this 22nd day of November, 2011.
/s/ Marco A. Hernandez
MARCO A. HERNANDEZ
United States District Judge
9 - OPINION AND ORDER
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