Elstun v. Commissioner, Social Security Administration
Filing
30
OPINION AND ORDER. Signed on 02/20/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENNY R.
ELSTUN,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MAX RAE
P.O. Box 7790
Salem, Oregon 97303
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
GERALD J. HILL
Office of General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, Washington 98104
Attorneys for Defendant
1 - OPINION AND ORDER
6:12-cv-01811-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff seeks an award of attorney's fees in the amount of
$12,751.76 under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§
2412 (d) (1) (A).
The
Commissioner
objects
to
Plaintiff's
attorney's fees application, arguing that an attorney's fees award
is inappropriate because the Commissioner's litigation position was
substantially
justifi~d
and, in the alternative, the amount of fees
requested is unreasonable. I find that the Commissioner's position
was not substantially justified, but conclude that the requested
fee award is unreasonable.
Accordingly,
for Fees Pursuant to EAJA (#24)
Plaintiff's Application
is granted in part and denied in
part.
BACKGROUND
Plaintiff filed applications for supplemental security income
(SSI) and disability insurance benefits (DIB) on October 3, 2007,
which were denied initially and upon reconsideration.
Plaintiff
then protectively filed the applications for DIB and SSI at issue
in this· case on April 13, 2009, alleging disability due to "[1] ower
back and both legs and mental health problems.•
Tr.
205.
Her
applications were again denied initially and upon reconsideration.
A hearing was held before an Administrative Law Judge (ALJ) on June
9,
2011,
testified.
at
which
Plaintiff
was
represented
by
counsel
and
On August 19, 2011, the ALJ issued a decision finding
Plaintiff not disabled within the meaning of the Act.
2 - OPINION AND ORDER
After the
Appeals Council declined review of the ALJ's decision,
Plaintiff
timely filed a complaint in this court.
Plaintiff raised eight independent substantive assignments of
The Court rejected seven of Plaintiff's eight
error in her appeal.
arguments, but agreed with Plaintiff that the ALJ erred in failing
to properly explain her consideration of a disability determination
by Vocational Rehabilitation Services
that
conclude~d
Court
remand
Accordingly,
(VRS).
permit
the
to
necessary
was
the
Commissioner to evaluate the omitted VRS disability determination
and consider its effect on the RFC.
Plaintiff,
present
as the prevailing party,
for
application
attorney's
fees
subsequently filed the
under
the
EAJA.
The
Commissioner opposes the award of fees, arguing that her position
was
substantially
entitled
to
fees
justified,
under
the
and
therefore
EAJA.
In
is
not
alternative,
the
Plaintiff
the
Commissioner argues that Plaintiff's attorney's fees award should
be reduced because the amount of fees sought is unreasonable.
DISCUSSION
I.
Substantial Justification
Under the EAJA,
a prevailing party is entitled to recover
attorney's fees "unless the court finds that the position of the
United
States
was
substantially
circumstances make an award unjust."
justified
28 U.S.C.
or
§
that
special
2412(d) (1) (A).
"The test for whether the government is substantially justified is
3 - OPINION AND ORDER
one of reasonableness."
F. 3d 613,
618
Gonzales v.
(9th Cir. 2005)
Free Speech Coalition,
(internal quotation omitted).
408
The
government's position need not be justified to a high degree, but
to a degree that could satisfy a reasonable person.
Underwood,
487 U.S.
552,
563-66
(1988);
Pierce v.
Bay Area Peace Nairy 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
Pierce, 487 U.S. at 565; Hardisty v. Astrue, 592 F.3d·l072,
fact.
u.s.
1079 (9th Cir. 2010), cert. denied,
I
131 S.Ct. 2443
(2011).
The question is not whether the government's position as to
the
merits
justified."
of
plaintiff's
disability
claim was
"substantially
Shafer v. Astrue, 518 F. 3d 1067, 1071 (9th Cir. 2008).
Rather, the relevant question is whether the government's decision
defend
the
justified.
Id.
to
procedural
errors
on
appeal
was
substantially
The government bears the burden of demonstrating
substantial justification.
Kali v. Bowen, 854 F.2d 329, 332 (9th
Cir. 1988).
SSR 06-03p provides that while disability determinations by
other governmental agencies are not binding on the Commissioner,
such determinations "cannot be ignored and must be considered," and
the ALJ "should explain the consideration given to these decisions"
in the opinion.
*7.
SSR 06-03p, available at 2006 WL 2329939, at *6-
As I noted in the Opinion and Order, the ALJ "clearly erred in
4 - OPINION AND ORDER
considering the VRS disability determination because she failed to
explain the consideration it was given."
at 20.
Opinion and Order (#20)
Moreover, such error· was plainly not
determination
contained
accounted
in
for
the
limitations
that
Thus,
RFC.
as the VRS
harmles~,
were
I
not
otherwise
conclude
that
the
Commissioner's position did not have a reasonable basis in law and
fact, and was accordingly not substantially justified.
See Pierce,
·487 U.S. at 565.
II.
Reasonableness of Requested Fees
The
"lodestar"
method
attorney's fee under EAJA.
F. 3d 1132,
amount,
1135
the
used
to
calculate
a
reasonable
Costa v. Comm'r Soc. Sec. Admin., 690
(9th Cir.
court
is
"To calculate
2012).
multiplies
expended on the litigation . .
'the
number
of
the
hours
reasonably
by a reasonable hourly rate.'" Id.
(quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983))
in original).
lodestar
(ellipses
"[C]ounsel for the prevailing party should exercise
'billing judgment' to 'exclude from a fee request hours that are
excessive,
redundant,
or otherwise unnecessary'
private practice would do."
434).
Generally,
professional
(quoting Hensley,
lawyer in
461 U.S.
at
the court will defer to the "winning lawyer's
judgment
litigate the case.
Id.
as a
as
to
how
much
time"
was
necessary
to
Moreno v. City of Sacramento, 534 F.3d 1106,
1112 (9th Cir. 2008).
5 - OPINION AND ORDER
"The product of reasonable hours times a reasonable rate does
not end the inquiry," as the court must also consider the results
"only some claims for
partial
If the plaintiff prevails on
Hensley, 461 U.S. at 434.
obtained.
or
limited
relief,~
success,
or if the plaintiff "achieved only
the
product
of
hours
reasonably
expended on the litigation as a whole times a reasonable hourly
rate may be an excessive amount."
hand,
Id. at 434-3 6.
On the other
"[w]here a plaintiff has obtained excellent results,
[the]
attorney should recover a fully compensatory fee," which in some
cases may include an enhanced award.
A.
Id. at 435.
Reasonable Hours
With respect to EAJA attorney's fees in social security cases,
"twenty to
granted."
forty
Costa,
hours
is
the
range
690 F.3d at 1136.
most
often requested
and
This range is relevant to
determining the reasonableness of the fee request, but is only one
factor among many to be considered in calculating a reasonable fee.
See id.
Plaintiff's counsel claimed 68.09 hours of work expended on
this case, of which counsel spent 40.94 hours writing Plaintiff's
opening brief and 23. 62 writing the reply brief.
Max Rae (#27) at 1-2.
Declaration of
For the reasons that follow, I find that the
hours claimed are unreasonable.
At the outset, I note that the 68.09 hours expended on this
case are substantially greater than the number of hours billed in
6 - OPINION AND ORDER
a typical social security case.
The administrative record in this
case was 1,208 pages, a length that is above average, but not to an
extraordinary extent.
Record (#12).
Transcript of Social Security Administrative
Without a doubt, a reasonable attorney would require
some additional time over and above a typical case to adequately
review a record of such length, but the 68.09 hours expended is
well
beyond that which would be expected even considering the
length of the record.
In addition, I note that while Plaintiff's briefing was quite
lengthy,
some of the arguments Plaintiff's counsel raised were
frivolous.
Of Plaintiff's eight arguments, a reasonable attorney
would not have asserted the first,
because they were frivolous.
second,
seventh,
and eighth
Plaintiff's first argument- that the
ALJ erred by not reopening Plaintiff's prior application -
was
meritless because the ALJ did not ascribe any preclusive effect to
the denial of the prior application and therefore de facto reopened
the
2007
application.
Plaintiff's
second
argument
was
also
unreasonable, as Plaintiff asserted the ALJ erred by not including
one of Plaintiff's symptoms- LS radiculopathy- at Step Two even
though the ALJ included the condition that caused the symptoms degenerative disc disease at that step.
Much
of
Plaintiff's
otherwise
unrelated
meritless.
First,
seventh
arguments
argument
concerning
a
the
collection
RFC
was
of
also
Plaintiff's assertion that the ALJ failed to
7 - OPINION AND ORDER
limit Plaintiff's work attendance due to her need to attend medical
appointments was unsupported by the
record,
as nothing in the
record indicated necessary appointments could not be scheduled
Second, Plaintiff's assertion that the
during non-working hours.
ALJ was not properly qualified to limit Plaintiff to "unskilled
in
work"
RFC
the
or
legal
lacked any
Third,
basis.
factual
Plaintiff's assertion that the ALJ failed to properly consider the
record was merely a restatement of prior arguments.
Plaintiff's eighth argument inconsistent
testimony was
with
that the vocational expert's
the
RFC
also meritless
was
because it inaccurately characterized the ALJ's RFC findings.
total,
In
these arguments accounted for approximately 12 of the 53
pages of briefing submitted by Plaintiff's counsel.
While an
argument is not unreasonable simply because it does not ultimately
prevail, I find that a reasonable attorney would have omitted these
Accordingly,
arguments.
I
conclude
hours
were
not
reasonably
expended developing these claims.
The remaining four arguments,
unusually complex.
Of these four arguments I
Plaintiff prevailed on one.
concerned
an
issue
security cases,
while nonfrivolous,
that
were not
find reasonable,
While Plaintiff's winning argument
does
not
frequently
arise
in
social
and counsel is to be commended for finding and
presenting it on review,
the claim implicated a straightforward
application of an administrative policy statement.
8 - OPINION AND ORDER
In addition,
the three nonfrivolous arguments on which Plaintiff did not prevail
concerned issues that arise in the majority of social security
cases this Court reviews.
Accordingly, the presentation of these
issues would not have required counsel to expend considerably more
time than would be involved in a typical social security case.
Finally, I deduct 0.75 hours expended preparing a Rule 59(e)
motion.
This
motion
was
unreasonable
and
caused
solely
by
counsel's misunderstanding of the Court's Opinion and Order.
I conclude that the 68.09 hours billed by Plaintiff's counsel
in this matter are unreasonable.
As a result, I reduce by 25% the
hours billed for drafting the opening and reply briefs in May and
August of 2013.
This reduction is roughly commensurate with the
number of pages of briefing expended on frivolous arguments, and is
additionally supported by the relatively routine nature of the
nonfri volous
issues
and
extraordinarily
claimed by Plaintiff's counsel.
hours billed in May,
high
Therefore,
I
number
of
hours
reduce counsel's
2013 to 30.71; the hours in August, 2013 to
17.72; and the hours in October, 2013 to 1.98.
I leave undisturbed
the 0.8 hours billed in October, 2012.
I
note
that
deductions is
the
51.21
total
hours
remaining
these
still well above the high end of the twenty- to
forty-hour range typical for social security cases.
F.3d at 1136.
after
See Costa, 690
This remaining number is justified by the length of
the administrative record and the relative unusualnes.s of the issue
9 - OPINION AND ORDER
on which
Plaintiff ultimately prevailed,
as
well as
by giving
Plaintiff's counsel the benefit of the doubt.
B.
Results Obtained
Alternatively, I find that the narrow nature of the results
obtained
justifies
a
reduced
reward.
Of
the
eight
primary
assignments of error raised, Plaintiff only prevailed on one.
The
result was a remand to the Commissioner for consideration of one
piece of evidence among a 1,208 page record - the VRS disability
determination.
The Court affirmed the Commissioner's treatment of
the remainder of the evidence, including the ALJ's consideration of
the medical evidence, Plaintiff's testimony, and the lay testimony.
Because the remand is narrowly limited to consideration of the VRS
disability determination,
very
limited.
Because
I
it
find that the results obtained were
is
appropriate
counsel the benefit of the doubt,
however,
to
I
give
> ·· . ·
Plaintiff's
conclude that the
limited results obtained serve as an alternative basis for
the
approximately 25% reduction in Plaintiff's attorney's fees award,
and decline to further reduce the award.
III. Calculation of Fee Award
Defendant does not dispute, and I find reasonable, the hourly
rates
billed
by
Plaintiff's
attorney's fees as follows:
Ill
10 - OPINION AND ORDER
counsel.
Plaintiff
is
awarded
OCT. 2012
MAY 2013
AUGUST 2013
OCT. 2013
EAJA RATE
$185.71
$187.01
$187.76
$187.50
HOURS BILLED
0.8
30.71
17.72
1.98
MONTHLY FEES
$148.57
$5,743.08
$3,327.11
$371.25
Accordingly, Plaintiff is entitled to $9,590.01 in attorney's fees
($148.57 + $5,743.08 + $3,327.11 + $371.25).
CONCLUSION
Plaintiff's Motion for Attorney's Fees Pursuant to the Equal
Access to Justice Act (#24) is GRANTED IN PART and DENIED IN PART.
Attorney's fees in the amount of $9,590.01 are awarded to Plaintiff
pursuant to the EAJA.
attorney,
Attorney's fees will be paid to Plaintiff's
dependent upon verification that Plaintiff has no debt
which qualifies for offset against the awarded fees,
the Treasury Offset Program.
130
s.ct.
2521
(2010).
pursuant to
See Astrue v. Ratliff,
If Plaintiff has no such debt,
U.S.
the check
shall be made out to Plaintiff's attorney and mailed to Plaintiff's
attorney's office.
IT IS SO ORDERED.
DATED
this~
day of February, 2014.
Malcolm F. Marsh
United States District Judge
11 - OPINION AND ORDER
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