Hughes v. Commissioner Social Security Administration

Filing 28

OPINION & ORDER: Plaintiff's Application for Fees Pursuant to EAJA 24 is Granted, and the Commissioner is ordered to pay Hughes' attorney fees and costs in the total amount of $2,993.81. Signed on 10/3/12 by Magistrate Judge Paul Papak. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DOUGLAS HUGHES, JR.,
Plaintif1:
3:11-CV-462-PK
OPINION AND
ORDER

v.

MICHAEL J. ASTRUE,
Defendant.
PAPAK, Magistrate Judge:
Plaintiff Douglas Hughes, Jr., filed this action against defendant Michael A. Astrue,
Commissioner of Social Security, on April 15, 2011, seeking judicial review of the
Commissioner's decision finding him not disabled for purposes of entitlement to Social Security
disability insurance benefits. On May 2, 2012, I issued an Opinion and order reversing and
remanding the Co=issioner's decision for further proceedings pursuant to sentence four of 42
U.S.C. § 405(g). Now before the court is Hughes' unopposed amended motion (#24) for attorney
fees under the Equal Access to Justice Act. I have considered the pmiies' briefs and all of the
evidence in the record. For the reasons set forth below, Hughes' motion is granted, and Hughes
is awarded his attorney fees and costs in the total amount of $2,993. 81.

Ill
Ill
Page 1 - OPINION AND ORDER

ANALYSIS
I.

Plaintiffs Entitlement to Award of EAJA Fees
Hughes moves for attomey fees pursuant to the Equal Access to Justice Act ("EAJA").

The EAJA provides that:
a court shall award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to subsection (a),
incurred by that party in any civil action (other than cases sounding in tmi),
including proceedings for judicial review of agency action, brought by or against
the United States in any comi having jurisdiction of that action, unless the court
finds that the position of the United States was substantially justified or that
special circumstances make an award unjust.
28 U.S. C.§ 2412(d)(l)(A). For purposes of Section 2412, a party eligible for award offees must
be:
(i) an individual whose net wmih did not exceed $2,000,000 at the time the civil
action was filed, or
(ii) any owner of an unincorporated business, or any partnership, corporation,
association, unit of local government, or organization, the net wmih of which did
not exceed $7,000,000 at the time the civil action was filed, and which had not
more than 500 employees at the time the civil action was filed; except that an
organization described in section 501(c)(3) of the Internal Revenue Code of 1986
(26 U.S. C. 501 (c)(3)) exempt from taxation under section 501(a) of such Code,
or a cooperative association as defined in section 15(a) of the Agricultural
Marketing Act (12 U.S.C. 1141j (a)), may be a party regardless of the net wmih of
such organization or cooperative association or for purposes of subsection
(d)(l)(D), a sinal! entity as defined in section 601 of title 5 ....
28 U.S. C. § 2412(d)(2)(B). Here, it is undisputed that Hughes falls within the scope of Section
2412(d)(2)(B)(ii). Moreover, the record establishes that Hughes' fee petition was timely filed,
and the Commissioner concedes that Hughes was the prevailing party. The sole issue for this
court to resolve in connection with determining Hughes' entitlement to fees under the EAJA is
whether the govemment's position was substantially justitled.

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It is the Commissioner's burden to establish substantial justification. See Kali v. Bowen,
854 F.2d 329, 332 (9th Cir. 1988). A legal position is substantially justified if it is "'justified in
substance or in the main'- that is, justified to a degree that could satisfy a reasonable person."
Pierce v. Underwood, 487 U.S. 552, 565 ( 1988). The Supreme Court has expressly observed
that the foregoing fom1Ulation is the equivalent of the alternate formulation "[having a]
reasonable basis both in law and fact," id, and the Ninth Circuit has held that "substantially
justified means there is a dispute over which 'reasonable minds could differ,"' Gonzales v. Free
Speech Coalition, 408 F.3d 613,618 (9th Cir. 2005), quoting League of Women Voters of Cal. v.
FCC, 798 F.2d 1255, 1260 (9th Cir. 1986). The Supreme Court expressly rejected the
proposition that to establish substantial justification could require any showing beyond "mere"
reasonableness, see Pierce, 487 U.S. at 566-568, but also cautioned that in this context
"reasonable" means something "more than merely undeserving of sanctions for frivolousness,"
id. at 566. The Pierce court clarified that "a position can be justified even though it is not
correct, [indeed] substantially (i.e., for the most part) justified if a reasonable person could think
it correct, that is, if it has a reasonable basis in law and fact." Id. at 566, n. 2.
The Pierce and Gonzales decisions provide a modicum of guidance to the courts as to
how the justification of a legal position should be evaluated. Specifically, Pierce instructs that
the fact that one or more judges may have agreed or disagreed with the government's position is
not dispositive as to justification, see id at 569, although it is certainly relevant, and Gonzales
warns that the reasonableness of the government's position must be evaluated as of the time the
position was adopted, and not in light of a court's subsequent final ruling on the merits of the
position, see Gonzales, 408 F.3d at 620.

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As I found in my Opinion and Order (# 19) dated May 2, 2012, the AU's conclusions
regarding lay witness testimony provided by Hughes' girlfriend Lorrayne Ellis and the AU's
refusal to consider a letter dated September 25, 2009, submitted by Hughes' treating physician
Dr. Michael Booker, were without any reasonable evidentiary basis. Lacking a reasonable basis
in fact, the Conm1issioner's decisions on these points were necessarily not substantially justified.

See Pierce, 487 U.S. at 565. The Commissioner therefore cannot meet his burden to establish
that the govermnent's position was substantially justified, and Hughes is entitled under the EAJA
to his attorney fees reasonably incurred in connection with this action.

II.

Attorney and Paralegal Fees
Dete1mination of a reasonable attomey's fee begins with the "lodestar," which is the

"number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate."

Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 563-64 (1986).
I11 the course of this litigation, Hughes relied on the services of a single attorney, James S.
Coon, and the services of one or more paralegals. According to the time records submitted in
suppmi of Hughes' petition, Coon expended I hour in 20 II and 2 hours in 202 litigating the
merits of Hughes' request for judicial review, and Coon's paralegals expended 14 hours in 2011
and 8 hours in 20 12 litigating the merits of Hughes' request for judicial review. Hughes requests
that Coon's hours be compensated at hourly rates of$180.59 for hours expended in 2011 and
$181.97 for hours expended in 2012, and that paralegal services be compensated at hourly rates
of $108.97 for 2011 hours and $109.18 for 2012 hours. Based on the foregoing, Hughes assetis
an entitlement to award of a total of $2,944.66 in attorney fees.

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A.

Hours Reasonably Expended

The Commissioner does not challenge the reasonableness of some of Hughes' attomey's
or paralegals' time expenditures. Nevertheless, this court bears a responsibility to conduct its
own independent analysis of the reasonableness of the time expenditures underlying Hughes'
petition. See, e.g., Gates v. Deukmejian, 987 F.2d 1392, 1400-1401 (9th Cir. 1992).
It is the fee claimant's burden to demonstrate that the number of hours spent was

"reasonably necessary" to the litigation and that counsel made "a good faith effort to exclude
from [the] fee request hours that are excessive, redundant, or otherwise unnecessmy." Hensley v.
Eckerhart, 461 U.S. 424,434 (1983); see also Frank Music Corp. v. 1\Ietro-Goldwyn-J'vfayer,
Inc., 886 F.2d 1545, 1557 (9th Cir. 1989) ("plaintiffs bear the burden of showing the time spent

and that it was reasonably necessary to the successful prosecution of their ... claims); Chalmers
v. Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986) (district court determines numbers of hours

reasonably expended in furtherance of the successful aspects of a litigation). Moreover, it is
likewise the fee claimant's burden to "submit evidence supporting the hours worked .... Where
the documentation of hours is inadequate, the district court may reduce the award accordingly."
Hensley, 461 U.S. at 433; see also, e.g., Welch v. lvfetro. Life Ins. Co., 480 F.3d 942, 945-946

(9th Cir. 2007) (same). Analysis of the materials submitted in support of Hughes' fee petition
establishes no grounds for concluding that any of the hours for which compensation is requested
were excessive, redundant, or otherwise unnecessary to the prosecution of Hughes' case. I
therefore find that Hughes is entitled to compensation for 3 hours of attomey time and 22 hours
of paralegal time expended by his counsel in the course of this litigation.

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B.

Reasonable Rate

As noted above, Hughes requests that his attorneys' time be compensated at hourly rates
$180.59 for hours expended in 2011 and of$181.97 for hours expended in 2012. Pursuant to the
EAJA, "attorney fees shall not be awarded in excess of $125 per hour unless the court detern1ines
that an increase in the cost of living or a special factor, such as the limited availability of
qualified attomeys for the proceedings involved, justifies a higher fee." 28 U.S.C. §
2412( d)(2)(A)(ii). Hughes does not indicate that he seeks any "special factor" increase in the
statutory rate cap, but does seek adjustment based on increases in the cost of living.
To adjust the EAJA statutory fee cap for increases in the cost ofliving, the courts of the
Ninth Circuit multiply the statutory rate cap of$125 times the appropriate consumer price index
for urban consumers ("CPI-U") for the year in which the fees were incurred, then dividing that
quotient by the CPI-U for the month in which the cap was imposed (March 1996). See Sorenson

v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001). I take judicial notice that the United States
Department of Labor's Bureau of Labor Statistics has published a CPI-U for the westem states of
156.4 for March 1996, of227.485 for 2011, and of231.555 for the first half of2012. The
applicable statutmy rate caps as adjusted for increases in the cost of living are, therefore,$181.81
for 2011 and $185.07 for the first halfof2012. Because each of these adjusted rate caps is in
excess of the conesponding rate Hughes has requested, the requested rates for compensation of
attorney time are necessarily reasonable for EAJA purposes.
Hughes requests that time expended by paralegals in litigating the merits of his request
for judicial review be compensated at a rate equal to 60% of the rate requested for compensation
of attomey time, or $108.97 for hours expended in 2011 and $109.18 for hours expended in

Page 6 - OPINION AND ORDER

2012. I find that compensating paralegals for non-clerical tasks at a rate equal to 60% of an
attorney rate is reasonable under the circumstances, and therefore agree with Hughes that the
requested paralegal rates are reasonable.
C.

Calculation and Adjustment of the Lodestar Figure

1.

The Lodestar Product

The product of the 1 hour reasonably expended by Coon in 2011 and the reasonable
requested hourly rate of$180.59 is $180.59, the product of the 2 hours reasonably expended by
Coon in 2012 and the reasonable requested hourly rate of$181.97 is $363.94, the product of the
14 hours reasonable expended by Coon's paralegals in 20 II and the reasonable requested hourly
rate of $108.97 is $1,525.58, and the product of the 8 hours reasonable expended by Coon's
paralegals in 2012 and the reasonable requested hourly rate of$1 09.18 is $873.44. Thus, the
lodestar calculation results in a total of$2,943.55 in attorney fees reasonably incuned in the
course of litigating this action.
2.

Adjustment

It is the fee claimant's burden to prove the reasonableness of the lodestar amount. See

Pennsylvania, 478 U.S. at 563-64. The factors that may properly be considered in determining
and evaluating the lodestar figure include: ( 1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill required; (4) the preclusion of other employment by the
attorney; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations
imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9)
the experience, reputation and ability of the attomeys; (10) the "undesirability" of the case; (II)
the nature and length of the professional relationship with the client; and (12) awards in similar

Page 7 - OPINION AND ORDER

cases. See, e.g., Kerr v. Screen Extras Guild, 526 F.2d 67, 70 (9th Cir. 1975). Only those factors
which are applicable need be addressed. See, e.g., Sapper v. Lenco Blade, Inc., 704 F.2d 1069,
1073 (9th Cir. 1983).
It is within the discretion of the trial court judge to adjust the lodestar figure either: ( 1)

downward if the plaintiff has achieved only partial or limited success or if the fee is otherwise
umeasonable, Hensley, 461 U.S. at 435-36 (1983); or (2) upward in "rare" and "exceptional"
cases, Pennsylvania, 478 U.S. at 565. The presumption, however, is that the lodestar figure
represents a reasonable fee. See },filler v. Los Angeles County Ed. ofEduc., 827 F.2d 617, 621
(9th Cir. 1987).
I do not find that adjustment of the lodestar figure is wananted here. I therefore
recommend that the court award Hughes his attorney and paralegal fees in the lodestar amount
provided above, specifically $2,943.55.

III.

Costs
In addition to attorney and paralegal fees, Hughes requests compensation for $50.26 in

costs expended in connection with litigating the merits of his request for judicial review. The
Commissioner does not object to mvard of Hughes' costs in such amount. The record containing
no grounds for finding the request umeasonable, I find that Hughes is entitled to award of his
costs in the requested amount.

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CONCLUSION
For the reasons set forth above, Hughes' motion (#24) is granted, and the Commissioner
is ordered to pay Hughes' attorney fees and costs in the total amount of $2,993. 81.

Dated this 3rd day of October, 2012.

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