Prohaska v. Commissioner of Social Security

Filing 26

ORDER FOR EAJA FEES. Signed on 04/23/2015 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TERESA MARIE PROHASKA
Plaintiff,

v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Defendant.
TIM WILBORN
Wilborn Law Office, PC
P.O. Box 370578
Las Vegas, NV 89137
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
RONALD K. SILVER
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
BRETT E. ECKELBERG
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1 - ORDER FOR EAJA FEES

Case No. 3:13-cv-01621-MA
ORDER FOR EAJA FEES

MARSH, Judge
Plaintiff seeks an award of attorney fees in the amount of
$5,915.89 under the Equal Access to Justice Act (EAJA), 28 U.S.C.
2412 (d) (1) (A).

§

Commissioner

Because

was

not

I

find

that

substantially

the

position

justified,

of

the

plaintiff's

application for fees is granted in part and denied in part.
BACKGROUND
Plaintiff protectively filed her applications for disability
insurance

benefits

and

supplemental

security

income

disability

benefits on November 10, 2009, alleging disability due to multiple
sclerosis

and

Plaintiff's

peripheral

applications

neuropathy
were

beginning

denied

June

initially

1,
and

2008.
upon

reconsideration. An ALJ held a hearing on February 13, 2012. On May
3,

2012,

the

ALJ

issued

a

decision

denying

plaintiff's

applications. After Appeals Council denied review, plaintiff timely
appealed.
Plaintiff raised four independent assignments of error in her
appeal.

The court rejected three of those arguments,

but agreed

with plaintiff that the ALJ's Step Four finding is not supported by
substantial evidence.

Exercising discretion,

I remanded the case

for further proceedings.
Plaintiff,
present

as the prevailing party,

Application

for

Fees

Pursuant

subsequently filed the
to

EAJA

(#22).

The

Commissioner objects to plaintiff's fee application, arguing solely

2

~

ORDER FOR EAJA FEES

that

a

fee

award

is

inappropriate

because

the

Commissioner's

litigation position was substantially justified,

and therefore,

plaintiff is not entitled to fees under the EAJA.
DISCUSSION
I.

Substantial Justification

Under

EAJA,

a

prevailing

party

is

entitled

to

recover

attorney's fees "unless the court finds that the position of the
United

States

was

substantially

justified

or

circumstances make an award unjust." 28 U.S.C.

§

that

special

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

Underwood,

487 U.S.

552,

563-66

reasonable person.

(1988);

Pierce v.

Bay Area Peace Navy v.

United States, 914 F.2d 1224, 1230 (9th Cir. 1990). 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).
The position of the United States includes the "government's
litigation position and the underlying agency action giving rise to
the civil action." Meier v.

Colvin,

727 F.3d 867,

870

(9th Cir.

2013). The government bears the burden of demonstrating substantial
justification. Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir.
3 - ORDER FOR EAJA FEES

2001). The government's position must be substantially justified at
both stages. Meier, 727 F.3d at 872;

Shafer v.

Astrue,

518 F.3d

1067, 1071 (9th Cir. 2008).
On

appeal

to

this

court,

plaintiff

argued

that

the

ALJ

improperly rejected plaintiff's testimony and the lay testimony of
her mother,

that the ALJ's step four finding was unsupported by

substantial

evidence,

and

that

the

hypothetical

posed

to

the

vocational expert (VE) was invalid. In the Opinion and Order (#20),
I upheld the ALJ's findings on all issues raised with the exception
of one, ALJ's step four finding.
The Commissioner argues that its position was substantially
justified because it has a reasonable basis in fact. I disagree. As
I specifically discussed in· the Opinion and Order, VE testimony of
cashier positions listed in the Dictionary of Occupational Titles
(DOT) was ambiguous because the VE failed to provide citations to
the DOT codes. Opinion and Order,
request

DOT codes

(#20),

to clarify the record.

p.

22.
Id.

The ALJ did not
Finally,

the ALJ

erroneously found plaintiff could perform her past relevant work of
cashier as generally performed without indicating which cashier job
plaintiff could perform at step four.

1

Id.

at p. 23. Based on the

significant lack of clarity in the record, the ALJ's finding that
plaintiff could perform her past relevant work as a cashier as
1

In the Opinion and Order, I noted that the DOT lists a
variety of cashier jobs at various skill and exertion levels. See
Opinion and Order (#20), p. 21 & n. 2.
4 - ORDER FOR EAJA FEES

generally performed was not supported by substantial evidence. The
Commissioner's underlying action was not reasonably based in fact
and therefore, not substantially justified.
The

Commissioner

further

argues

that

its

position

had

a

reasonable basis in law because aside from failing to cite to DOT
codes, the ALJ relied on the VE's testimony to correctly find that
plaintiff could perform past work as

a

cashier.

This

argument

misses the mark.
The Ninth Circuit and the agency's regulation are clear with
respect

to

Step

classifications .

Four

"Broad

findings.

generic

. are insufficient to test whether a claimant

can perform past relevant work." Carmickle v.
F.3d

1155,

1167

occupational

(9th

Cir.

2008);

see

Commissioner,

also

Social

533

Security

Regulation 82-61 (1982) ("Finding that a claimant has the capacity
to do past relevant work on the basis of a generic occupational
classification

of

the

work

is

likely

to

be

fallacious

and

unsupportable."). As I clearly held, the ALJ erroneously relied on
the

VE' s

generic

support the ALJ' s

classification
finding

of

"cashier"

at

step

four

to

that plaintiff can perform her past

relevant work. Opinion and Order ( #20) , pp. 22-23. Accordingly, the
Commissioner's position also did not have a reasonable basis in
law. Thus, the Commissioner's position in defending this issue was
not substantially justified.

5 - ORDER FOR EAJA FEES

Furthermore,

"it will be only a decidedly unusual case in

which there is substantial justification under the EAJA even though
the

agency's

decision

was

reversed

as

lacking

in

reasonable,

substantial and probative evidence in the record." Thangaraja v.
Gonzales,

428 F.3d 870,

874

(9th Cir.

2005) (citations omitted).

This case does not meet the "decidedly unusual case" threshold.'
See e.g., Meier, 727 F.3d at 872.
II.

Reasonableness of EAJA Award

An award of attorney's 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).

The starting point for a

reasonable fee is the number of hours expended multiplied by a
reasonable hourly rate. Hensley, 461 U.S. at 433; Atkins v. Apfel,
154 F.3d 986, 988 (9th Cir. 1998).
The

fee

appropriate

applicant
hours

bears

expended

2

in

the

burden

of

the

litigation

documenting
and

must

the

submit

See Lev. Astrue, 529 F.3d 1200, 1201-02 (9th Cir.
2008) (finding substantial justification where the government
contested the char~cterization of a physician as "treating" where
the regulatory standard was vague); Kali v. Brown, 854 F.2d 329,
330-31 (9th Cir. 1988) ("If the question of law is unresolved and
of unclear resolution, then the government's litigation of the
issue is reasonable and substantially justified."); Trujillo v.
Colvin, No. 3:13-cv-0620-SI, 2014 WL 4824985, *3 (D. Or. Sept.
23, 2014) (holding that government's position was substantially
justified where there was no controlling precedent on the issue
for remand) .
6 - ORDER FOR EAJA FEES

evidence in support of those hours worked. Gates v. Deukmejian, 987
F.2d 1392, 1397 (9th Cir. 1992). Where documentation is inadequate,
the court may reduce the requested award. Henley, 461 U.S. at 43334.
Plaintiff seeks a

total of $5, 915. 89 in attorney fees

for

31.20 hours expended, broken down by year as follows: $187.02 per
hour for

4.6 hours expended in 2013,

$190.06 per h<;mr for 25.3

hours expended in 2014, $190.06 per hour for 1.3 hours expended in
2015. 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.
A. Clerical Tasks
Clerical

work

or

secretarial

tasks

are

not

properly

reimbursable as attorney's fees. Missouri v. Jenkins by Agyei, 491
U.S. 274, 288, n, 1 (1989) (clerical tasks 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 Nadarajah v. Holder, 569 F.3d 906, 921

(9th Cir.

2009) (holding that clerical tasks such as filing and organization
"should have been subsumed in firm overhead rather than billed at
paralegal

rates");

1727472, at *4

Brandt

(D. Or.

v.

Astrue,

No.

08-0657-TC,

2009

WL

June 16, 2009) (finding that attorney time

spent drafting and serving summons was non-compensable clerical
work) .

7 - ORDER FOR EAJA FEES

A review of the billing entries reveals that Mr. Wilborn has
billed for preparing· and serving summonses and related documents,
tasks which this district has consistently found to be clerical in
nature. See Sterling Savings Bank v. Sequoia Crossing, LLC, 2010 WL
3210855,

*7

include,

but are not limited to,

filling

out

(D.

and

Or.

August 11,

printing

2010) ("Tasks considered clerical
filing motions with the court,

documents,

drafting certificates of service,

preparing

affidavits

organizing files,

and

calendaring

dates, rescheduling deposi.tions, and sending documents." (citations
omitted)); Uchytil v. Astrue, No. CV-08-0303-ST, 2009 WL 2132719,
*2 (D·; Or. July 10, 2009); Brandt, 2009 WL 1727472, *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 Sterling Savings Bank, I find the following entries
must be excluded:
9/13/13

Draft letter to U.S. Attorney

.1

10/03/13

Draft letter with documents
to effect service

.3

Prepare documents to allege
service via ECF

.3

11/01/13

These reductions result in a 0.7 hour reduction for time billed in
2013.
In summary, in light of the modest reduction discussed above,
I

find a

total of 30. 5 hours to be reasonable under the EAJA.

Therefore, plaintiff is entitled to $5,784.98 in fees

8 - ORDER FOR EAJA FEES

(3.90 hours

in

2013

X $187.02

$729.38,

=

25.3

hours

$4,808.52, 1.3 hours in 2015 X $190.06

=

in

2014

X $190.06

$247.08).

CONCLUSION

For the reasons stated above, plaintiff's Application for Fees
Pursuant to EAJA

(#22),

is GRANTED in part and DENIED in part.

Plaintiff is awarded $5,784.98 in fees. Consistent with Astrue v.
Ratliff, 130 s.ct. 2521, 2527-28 (2010), this EAJA award is subject

to

~ny

offset allowed under the Treasury Offset Program.

IT IS SO ORDERED.
DATED this

:J '.$

day of April, 2015.

~~·7~~
Malcolm F. Marsh
United States District Judge

9 - ORDER FOR EAJA FEES