Osier v. Commissioner Social Security Administration

Filing 19

ORDER: Granting in Part Denying in Part Application for Fees Pursuant to EAJA 16 . Signed on 8/2/2017 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHELLY OSIER,

Case No. 3:16-cv-01061-MA
Plaintiff,

ORDER FOR EAJA FEES

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge
Presently before the Coutt is Plaintiff Shelly Osier's Application for Attorney Fees pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Pl.'s Appl. Fees, ECF No. 16. Plaintiff
seeks an award of fees in the amount of $7,225.50. For the reasons that follow, Plaintiffs
Application is granted in part, and denied in patt.

BACKGROUND
Plaintiff alleged disability beginning on August 1, 2003, due to fatigue, cerebral palsy,
lumbago, foot pain, post traumatic stress disorder ("PTSD"), anxiety, and depression. Plaintiffs
application was denied initially and on reconsideration. Op. & Order 2, ECF No. 14. After a

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hearing, an Administrative Law Judge found Plaintiff is not disabled in Janumy 2015. After the
Appeals Council denied review, Plaintiff subsequently sought review in this Court.
Plaintiff raised several independent substantive assignments of eTI"or in her appeal. The Court
rejected several of those arguments, but agreed with Plaintiff that the ALJ eTI"ed by failing to provide
specific and legitimate reasons for rejecting the opinion of Karla Causeya, Psy.D. Exercising
discretion, the Court remanded the case for further proceedings.
On July 3, 2017, as the prevailing pmiy, Plaintiff filed this application for attorney fees
seeking $7,302.57 for 37.9 hours of attorney time.

The Commissioner filed a Response in

Opposition to Plaintiffs application for fees asse1iing its position was substantially justified. Def.' s
Resp., ECF No. 17. Alternatively, the Commissioner contends that Plaintiffs application for fees
is umeasonable. Plaintiff filed a reply, in which she reduced the requested amount of fees to
$7,225.50 reflecting 37.5 hours of attorney time.

DISCUSSION
I.

Substantial Justification
Under the EAJA, a prevailing pmiy is entitled to recover attorney's fees "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). "The test for whether the government is
substantially justified is one ofreasonableness." 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 reasonable person. Pierce v. Underwood, 487
U.S. 552, 563-66 (1988); Gonzales, 408 F.3d at 618.

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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." J'vfeier v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013). The government bears the
burden of demonstrating substantial justification at each stage of the proceedings. Id. at 872; Shafer

v. Astrue, 518 F.3d 1067, 1071 (9th Cir. 2008); Gutierrez v. Barnhart, 274 F.3d 1255, 1258-59 (9th
Cir. 2001).
The Commissioner contends that it was substantially justified in defending the ALJ' s
rejection of Dr. Causeya's opinion. The Commissioner appears to suggest that because Dr. Causeya
did not specifically opine that Plaintiff would be unable to work for the requisite 12 months thereby
satisfying the durational requirement, the ALJ' s discussion ofthe medical evidence was substantially
justified. The Commissioner's argument misses the mark.
On appeal to this Court, Plaintiff argued that the ALJ improperly rejected Dr. Causeya's
opinion. In its Opinion and Order, the Court agreed. The Comi concluded that the ALJ erred in
rejecting Dr. Causeya's opinion, failing to set forth specific and legitimate reasons backed by
substantial evidence. As thoroughly set out in the Opinion and Order, none of the four reasons
provided by the ALJ for rejecting Dr. Causeya's opinion were supported by substantial evidence.
Op. & Order 11-13. For example, the ALJ rejected Dr. Causeya's opinion because she failed to
provide any explanation for the check-the-box MRFC assessment. However, as the Court detailed,
Dr. Causeya conducted a battery of independent intellectual and memory tests and prepared a ten
page report detailing her findings. Id. at 11. Thus, the Co mi concluded that the ALJ' s failed to offer
specific and legitimate reasons, supp01ied by substantial evidence, for rejecting Dr. Causeya's
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opinion. For this reason, and those stated in the Opinion and Order, the Court concludes that the
government's underlying action was not substantially justified in this case. Afeier, 727 F.3d at 872
(finding government's position was not substantially justified where ALJ failed to provide specific
or legitimate reasons to discount physician's opinion); accord }vfartin v. Comm 'r Soc. Sec. Adm in.,
598 F.App'x 485, 486 (9th Cir. 2015) (same). Moreover, the Court detennines that because the
government's underlying agency position was not substantially justified, the government's position
defending the rejection of Dr. Causeya's opinion was not substantially justified. Shafer, 518 F.3d
at 1071 ("The government's position must be substantially justified at each stage of the
proceedings."); see Doran v. Comm 'r Soc. Sec. Admin.,, Case No. 3: 13-cv-01008-MA, 2015 WL
74170, *2 (D. Or. Jan.6, 2015) (finding Commissioner's position in defending doctor's improperly
rejected opinion was not substantially justified). Accordingly, Plaintiff is entitled attorney fees under
theEAJA.

II.

Reasonableness of EAJA Award
An award ofattorney'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); Aforeno v. City ofSacramento, 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. at433; Costav. Commissioner Soc. Sec. Adm in., 690 F.3d
1132, 113 5 (9th Cir. 2012). 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 v.
Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). Where documentation is inadequate, the comi
may reduce the requested award. Hensley, 461 U.S. at 433-34.

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Plaintiff requests $7,225.50 in attorney fees to compensate for 37.5 hours expended by
Plaintiffs counsel in 2016 and 2017. The Commissioner contends that Plaintiffs 37.5 hours is an
unreasonable amount of time, given that the issues presented were routine, Plaintiffs briefing
contained boilerplate language, and that Plaintiff inappropriately block-billed time and included
clerical tasks. The Commissioner does not contest the hourly rate of $192.68.
The Court observes that the 37 .5 hours requested falls within the range that has been
recognized as reasonable for a social security case of average complexity. Costa, 690 F.3d at 113637. This case was certainly of average complexity. In this case, Plaintiffs opening brief was 18
pages long, and raised five issues requiring analysis of the evidence and applicable law related to the
ALJ's evaluation of the evidence. The issues raised by Plaintiff are among those most frequently
asserted in Social Security cases. After reviewing the Commissioner's 15-page brief, Plaintiff filed
a six-page reply. Plaintiffs efforts achieved a successful result, in that the case was remanded for
fmiher administrative proceedings. I find that the 37.5 hours expended by counsel was a reasonable
amount of time given the issues, record, and arguments presented to reach a favorable resolution for
Plaintiff.
The Comi declines to make reductions for block-billing in this instance. "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." Aranda v. Astrue, No. CV. 08-340-MA, 2011
WL 2413996, *5 (D. Or. June 8, 2011). The Court observes that the majority of Plaintiffs time
entries contain a very limited description of the task. However, with the exception of the clerical
tasks identified below, the Commissioner fails to identify, nor does the Court find, any time entries

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that are non-compensable. Plaintiffs counsel is strongly encouraged to provide additional detail in
future attorney fee applications to aid the Court's task of assessing reasonableness.
As the Commissioner correctly contends, some reductions are necessaiy for hours spent on
clerical tasks, which are not compensable attorney time under the EAJA. See lvlissouri v. Jenkins,
491 U.S. 274, 288 n. 10 (1989) (noting that purely clerical tasks are not compensable as attorney
time); Sterling Savings Bank v. Sequoia Crossing, LLC, No. 09-cv-0555-AC, 2010 WL 3210855,
*7 (D. Or. August 11, 2010) ("Tasks considered clerical include, but are not limited to, filing
motions with the court, filling out and printing documents, preparing affidavits and drafting
certificates of service, organizing files, calendaring dates, rescheduling depositions, and sending
documents."). It is well-settled that the court may reduce an attorney's hours for time spent
performing clerical work. Neil v. Comm 'r Soc. Sec. Adm in., 495 F.App'x. 845, 847 (9th Cir. 2012)
(affirming reductions for clerical tasks such filing documents and preparing and serving summons);
Woll v. Comm 'rSoc. Sec. Admin., No. 3:13-CV-01877-MA, 2015 WL 3562191, *2 (D. Or. June 5,

2015) (reducing EAJA award for time spent filing Complaint).
There are three entries in Plaintiffs request that reflect time spent on clerical tasks, namely
filing documents. In Plaintiffs Reply, she amended her request to eliminate .4 hours for filing the
EAJA petition. Reply 4-5, ECF No. 18. In the remaining two entries, the time spent preparing the
document is not separated from the time filing the document. Accordingly, the Court reduces the
following two entries by .4 hours each to account for the non-compensable clerical time, consistent
with Plaintiffs amended request:
12/30/2016

5.50

Finalize and file USDC Opening Brief

3/15/2017

4.50

Finalize and file Reply Brief

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Pl.'s Appl. Fees, Ex. A, ECF No. 16-2. These reductions result in a modest reduction of .8 hours
from hours in 2016 and 2017. The requested hourly rate of$192.68 is the same for 2016 and 2017.
In summary, I find a total of 36.7 hours (37.5-.8 = 36.7) to be reasonable under the EAJA.
Therefore Plaintiff is entitled to an award of$7,071.36 (36.7 hours x $192.68

=

$7,071.36).

CONCLUSION

For the reasons stated above, Plaintiff's Application for Fees pursuant to EAJA (ECF No.
16) is GRANTED IN PART, and DENIED IN PART. Plaintiff is awarded attorney fees in the
amount of $7,071.36. The attorney fees will be paid to Plaintiff's attorney, dependent upon
verification that Plaintiff has no debt that qualifies for offset against the awarded fees, pursuant to
the Treasury Offset Program. See Astrue v. Ratliff, 560 U.S. 586 (2010). If Plaintiff has no such
debt, the check shall be made out to Plaintiff's attorney and mailed to: George J. Wall, 1336 E.
Burnside St., Suite 130, Portland, OR 97132. If Plaintiff has a debt, then the check for any
remaining funds after offset shall be made payable to Plaintiff and mailed to Plaintiff's attorney's
office at the address stated above.
IT IS SO ORDERED.
DATED this :J... day of AUGUST, 2017.

Malcolm F. Marsh
United States District Judge

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