Lewis v. Commissioner Social Security Administration
OPINION AND ORDER. For these reasons, the Court GRANTS Plaintiff's Motion # 19 for Attorney Fees and AWARDS to Plaintiff attorneys' fees in the amount of $10,428.24 and costs and expenses in the amount of $19.00. IT IS SO ORDERED. Signed on 4/14/2017 by Judge Anna J. Brown. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OPINION AND ORDER
NANCY A. BERRYHILL,1
Acting Commissioner, Social
NANCY J. MERSEROW
7540 S.W. 51st Avenue
Portland, OR 97219
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
Pursuant to Federal Rule of Civil Procedure 25(d), Nancy
A. Berryhill, who became Acting Commissioner of the Social
Security Administration on January 23, 2017, is automatically
substituted in place of Carolyn W. Colvin.
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Regional Chief Counsel
GERALD J. HILL
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
Attorneys for Defendant
This matter comes before the Court on Plaintiff’s Motion
(#19) for Attorney Fees in addition to $19.00 in costs and
On January 19, 2017, the Court issued an Opinion and
Order (#17) in which it found the Administrative Law Judge (ALJ)
erred when he failed to address the opinion of Plaintiff’s
treating psychologist, Neal Musselman, D.O.
The Court, however,
affirmed the ALJ’s decision in other respects.
Court reversed the ALJ’s decision and remanded this matter to the
Commissioner to address Dr. Musselman’s opinion and to reassess
Plaintiff’s residual functional capacity in light of
Dr. Musselman’s opinion.
The Court also entered a
Judgment (#18) on January 19, 2017.
On February 16, 2017, Plaintiff filed her Motion (#19) for
Attorney Fees in which Plaintiff seeks $10,428.24 in attorneys’
fees and $19.00 in costs and expenses.
Plaintiff’s Motion on the bases that (1) Defendant’s position
with respect to Dr. Musselman’s opinion was substantially
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justified and (2) Plaintiff’s requested fee award is
Award of Attorneys’ Fees Under EAJA
Under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412, the Court may award attorneys’ fees and costs to a
plaintiff’s attorney in an action against the United States or
any agency or official of the United States if
(1) the plaintiff is the prevailing party, (2) the
government has not met its burden to show 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.
28 U.S.C. § 2412(d)(1)(A).
See also Perez-Arellano v. Smith, 279
F.3d 791, 792 (9th Cir. 2002).
A “prevailing party” is one who has been awarded relief by
the court on the merits of at least some of his claims.
v. Hampton, 446 U.S. 754, 758 (1980).
“Enforceable judgments and
court-ordered consent decrees create ‘the material alteration of
the legal relationship of the parties’ necessary to permit an
award of attorney’s fees.”
Buckhannon Bd. and Care Home, Inc. v.
W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 604
(2001)(internal citation omitted).
A prevailing plaintiff is not entitled to attorneys’ fees
under EAJA when the Commissioner’s positions were substantially
Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.
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The Commissioner’s positions are substantially justified
if they are reasonably based in both law and fact.
Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)).
Commissioner’s failure to prevail on the merits of his positions
does not raise a presumption of unreasonableness.
Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002)(citing Kali v. Bowen,
854 F.2d 329, 332 (9th Cir. 1988)).
Calculating the Amount of Attorneys’ Fees
Under EAJA the hourly rate for attorneys’ fees is capped at
$125.00, but the statute allows the Court to make adjustments for
cost of living or other appropriate “special factor[s].”
U.S.C. § 2412(d)(2)(A).
If the government acts in bad faith,
however, fees may be awarded at the market rate rather than at
the EAJA-mandated rate.
28 U.S.C. §§ 2412(b), (c).
Brown v. Sullivan, 916 F.2d 492, 497 (9th Cir. 1990)(“The
district court may award attorney fees at market rates for the
entire course of litigation . . . if it finds that the fees
incurred during the various phases of litigation are in some way
traceable to the Secretary’s bad faith.”).
The “bad faith
exception is ‘a narrow one,’ typically invoked in cases of
‘vexatious, wanton, or oppressive conduct.’”
Id. at 495 (quoting
Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir. 1987), and citing
F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417
U.S. 116 (1979)).
The bad-faith exception “is punitive, and the
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penalty can be imposed ‘only in exceptional cases and for
dominating reasons of justice.’”
Beaudry Motor Co. v. Abko Prop.
Inc., 780 F.2d 751, 756 (9th Cir. 1986)(quoting United States v.
Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979)).
The court may reduce an award of attorneys’ fees under EAJA
when the plaintiff’s requested fees are unreasonable.
Comm’r of Soc. Sec. Admin., No. 11-35245, 2012 WL 3631255, at *2
(9th Cir. Aug. 24, 2012)(citing 28 U.S.C. §§ 2412(d)(1)(A),
The court applies the “lodestar” method set
forth in Hensley v. Eckerhart to determine whether a fee award is
Id. (citing 461 U.S. 424, 433 (1983)).
Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990)(Under EAJA “the
district court’s task of determining what fee is reasonable is
essentially the same as that described in Hensley.”).
To calculate the “lodestar” amount the court multiplies “the
number of hours reasonably expended on the litigation . . . by a
reasonable hourly rate.”
Hensley, 461 U.S. at 433).
Costa, 2012 WL 3631255, at *2 (quoting
To calculate the number of hours
reasonably expended the court considers “whether, in light of the
circumstances, the time could reasonably have been billed to a
Hensley, 461 U.S. at 433.
A court may not apply de facto caps on the number of hours
for which an attorney can be compensated under EAJA.
WL 3631255, at *1.
Cases must be considered on an individualized
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In order to reduce the number of hours requested for
a particular task, a court must explain why the amount of time
requested is too high and provide specific reasons for making
Id., at *4 (citing Moreno v. City of
Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2012)).
As noted, Defendant contends its position with respect to
Dr. Musselman’s opinion was substantially justified, and,
therefore, the Court should deny Plaintiff’s Motion for Attorney
Even if Plaintiff is entitled to attorneys’ fees,
Defendant contends Plaintiff’s request for $10,428.24 is
Defendant contends its position with respect to
Dr. Musselman’s opinion was substantially justified because
the ALJ relied on the opinions of other medical sources
including examining medical sources Jane Starbird, Ph.D.; Suzanne
Castro, Psy.D.; and Dorothy Anderson, Psy.D.
contends its position was substantially justified because
Dr. Musselman’s opinion did not establish Plaintiff would be
disabled for the requisite period.
Dr. Musselman, however, was Plaintiff’s treating physician,
and, therefore, “the Social Security Administration favors”
Dr. Musselman’s opinion “over non-treating physicians.”
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Astrue, 495 F.3d 625, 631 (9th Cir. 2007).
See also Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)(quoting Lester v,
Chater, 81 F.3d 821, 830 (9th Cir. 1995)(“‘As a general rule,
more weight should be given to the opinion of a treating source
than to the opinion of doctors who do not treat the claimant.’”).
Accordingly, notwithstanding the presence of other opinions
rendered by nontreating physicians in the record, the ALJ was
required to provide “‘specific and legitimate reasons that are
supported by substantial evidence’” in order to reject
Dr. Musselman’s opinion.
See Garrison, 759 F.3d at 1012 (quoting
Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir.
Here the ALJ failed to provide specific and legitimate
reasons for discrediting Dr. Musselman’s opinion in favor of the
opinions of Drs. Starbird, Castro, and Anderson.
Defendant’s position that the ALJ did not err when he discredited
Dr. Musselman’s opinion was not substantially justified.
Reasonableness of Plaintiff’s Requested Attorneys’ Fees
Plaintiff’s attorney represents she expended 68.0 hours on
this case and contends she should be reimbursed at a rate of
$191.70 per hour.
In the exercise of “billing judgment,”
however, Plaintiff’s counsel has voluntarily reduced the number
of billed hours by 20 percent to 54.4 hours.
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therefore, seeks $10,428.48 in attorneys’ fees.2
Notwithstanding Plaintiff’s voluntary reduction in the
amount of attorneys’ fees sought, Defendant contends Plaintiff’s
attorney-fee request is unreasonable and should be further
In particular, Defendant contends Plaintiff prevailed
on only one of the eight issues that she raised in her memoranda
and several of her arguments were unreasonable.
Although the Court agrees with Defendant that some of
Plaintiff’s arguments were without merit, any reduction on that
basis is sufficiently covered by Plaintiff’s 20-percent voluntary
Although the 54.4 billed hours for which Plaintiff
seeks compensation are somewhat greater than the ordinary number
of hours spent on Social Security cases, that difference is
reasonable in this case in light of the need for Plaintiff’s
counsel (who did not represent Plaintiff at the administrative
level) to familiarize herself with the case and to review a 771page administrative record that is somewhat larger than the
Accordingly, on this record the Court concludes the amount
of attorneys’ fees that Plaintiff requests is reasonable.
As noted, Plaintiff also seeks a total of $19.00 in costs
and expenses. Defendant does not object to that request.
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For these reasons, the Court GRANTS Plaintiff’s Motion (#19)
for Attorney Fees and AWARDS to Plaintiff attorneys’ fees in the
amount of $10,428.24 and costs and expenses in the amount of
IT IS SO ORDERED.
DATED this 14th day of April, 2017.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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