Fischer v. Commissioner Social Security Administration

Filing 31

ORDER: Granting Application for Fees Pursuant to EAJA 27 . Plaintiff's counsel, Nancy Meserow, is hereby awarded $11,613.47 in attorneys fees and $15 in costs on behalf of plaintiff. Signed on 11/21/2016 by Judge Ann L. Aiken. (cw)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

RICHARD WILLIAM FISCHER,

Case No. 6:15-cv-00707-AA
ORDER

Plaintiff,

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
AIKEN, Judge:
Plaintiff Richard William Fischer seeks attorney fees and costs pursuant to the Equal Access
to Justice Act ("EAJA"), 28 U.S.C. § 2412.

The Commissioner of Social Security

("Commissioner") opposes plaintiffs motion. For the reasons set forth below, plaintiffs motion is
granted.
Plaintiff applied for disability benefits 2011, alleging disability due to dyslexia and lower
back pain. Tr. 42, 85, 159. The Commissioner denied plaintiffs claim for benefits. Tr. 1, 32. On
September 13, 2016, this Court reversed and remanded for an immediate award of benefits. Fischer

v. Colvin, 2016 WL 4803175 (D. Or. Sept. 13, 2016). The Court held that plaintiff was disabled
because he is limited to medium work, is a person closely approaching retirement age, has an
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education level of "marginal or none," and has no work hist01y or an unskilled work histo1y. See
20 C.F.R. § 404 subpt. P, app. 2, rule 203.01 (directing a finding disability when these four criteria
are met). Having succeeded in his appeal, plaintiff timely filed a motion for attorney fees in the
amount of$1 l,613.47 and costs in the amount of$15.00.
A party that prevails against the United States government in a civil action is entitled to an
award of attorney fees under the EAJA, unless the court finds "that the position ofthe United States
was substantially justified or that special circumstances make an award unjust." 28 U.S.C. §
2412(d)(l)(A). The Commissioner does not contend that the agency's position was substantially
justified and agrees plaintiff is entitled to a fee award. Nonetheless, the Commissioner opposes
plaintiffs motion, arguing that the fee award should be reduced because plaintiffs counsel seeks
compensation for an excessive number of hours. 1
Federal courts assess the reasonableness of fee requests, including EAJA requests in Social
Security cases, using the "lodestar" method. Costa v. Comm 'r a/Soc. Sec. Admin., 690 F.3d 1132,
1135 (9th Cir. 2012). "To calculate the lodestar amount, the court multiplies 'the number of hours
reasonably expended on the litigation ... by a reasonable hourly rate."' Id. (quoting Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983)). The court then may adjust the lodestar upward or downward

based on "a host of reasonableness factors, including the quality of representation, the benefit
obtained ... , the complexity and novelty of the issues presented, and the risk of nonpayment."
Stetson v. Grissom, 821F.3d1157, 1166-67 (9th Cir. 2016) (quotation marks omitted). Counsel for

the prevailing party is expected to "exercise' billing judgment' to 'exclude from a fee request hours
that are excessive, redundant, or otherwise unnecessaiy' as a lawyer in private practice would do."
Costa, 690 F.3d at 1135 (quoting Hensley, 461 U.S. at 434). In a Social Security case, the

determination of how much time an attorney can reasonably spend on a case "will always depend
on case-specific factors including, among others, the complexity of the legal issues, the procedural

1

The Commissioner opposes neither plaintiffs counsel's requested hourly rate nor
plaintiffs request for costs. I find both the rate and costs billed to be reasonable.
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histo1y, the size ofthe record, and when counsel was retained." Id at 1136. Because "lawyers are
not likely to spend unnecessmy time on contingency fee cases" due to the uncertainty of payment,
"courts should generally defer to the winning lawyer's professional judgment as to how much time
he was required to spend on the case." Id (quotation marks omitted).
The Commissioner asks that the 60.6 hours billed in this case be reduced to forty hours. As
an initial matter, I note that the Commissioner provides no specific rationale for the size of the
proposed reduction other than to cite cases stating that the typical EAJA fee award in this district is
between twenty and foity hours. The Commissioner argues that because there are no special factors
showing this case was unusually complex, there is no justification for the fee award to be above that
range. The Ninth Circuit rejected that reasoning in Costa. In that case, the comt expressly addressed
the District of Oregon's "perceived ... informal district-wide rule that fo1ty hours is the upper limit
for the number ofhours a lawyer can reasonably spend on a social security disability appeal that does
not present pmticular difficulty." Id at 1137. The court rejected reliance on that rule, holding that
a district comt abuses its discretion by "ma[king] cuts to the requested hours with an eye toward
getting the number of hours down to forty rather than based on the number of hours that was
reasonable for the legal services" in a pmticular case. Id
The Commissioner argues the number of hours billed in this case are excessive for five
reasons: (1) 60.6 hours is well outside the typical range ofEAJA hours approved in Social Security
cases in this district; (2) the record is small; (3) the appeal did not involve complex legal issues; (4)
plaintiffs counsel is an experienced attorney; and (5) the remand order rested on a ground raised
only briefly by plaintiff.

It is undisputed that the 60.6 hours requested here are at the high end ofEAJA applications
in Social Security cases. In Costa, the Ninth Circuit affirmed that district comts "may consider" the
fact that "twenty to forty hours is the range most often requested and granted in social security
cases." 690 F.3d at 1136. Nonetheless, the court "question[ed] the usefulness of reviewing the
amount of time spent in other cases to decide how much time an attorney could reasonably spend
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on the pat1icular case before the court." Id. The "outlier" status of the number of hours in a fee
request, therefore, cannot support a reduction on its own. At most, it may tip the scales when other,
case-specific factors suggest a reduction is warranted.
The record in this case is relatively small, totaling fewer than three hundred pages. That is
an appropriate consideration under Costa, but brevity of a record is not dispositive. See Buzbee v.

Colvin, 2016 WL 2756173, *1 (D. Or. May 11, 2016)("Long records may follow a simple case. A
complex case may contain a beguilingly brief record."). I must therefore consider the length of the
record in relationship to the complexity of issues in this case.
This was an unusual case in that the record contained ample evidence of plaintiffs mental
limitations but relatively sparse documentation ofthose !imitations from acceptable medical sources.
As a result, although some of the issues briefed on appeal (for example, regarding plaintiffs
credibility) appear routinely in Social Security cases, others - particularly when dyslexia/mental
retardation may be considered severe medically determinable impairments and the effect ofilliteracy
in Social Security cases -

were complex and required novel research. Reflecting this complexity,

briefing here was extensive for a Social Security case. Plaintiff filed a thirty-seven page opening
brief and a twelve-page reply brief. Although I have not conducted a formal study of the typical
length of a Social Security brief in this district, a review of recent cases assigned to me2 and to my
colleagues 3 suggests the briefs here are about twice as long as briefs generally are in Social Security

2

See, e.g., Farley v. Colvin, Case No. 6: 15-cv-00643-AA, Doc. 17 & 23 (twenty-page
opening brief and nine-page reply brief); Purser v. Colvin, Case No. 3: l 5-cv-00606-AA, Doc. 15
& 19 (twelve-page opening brief and six-page reply brief); Nava v. Colvin, Case No. 3: 14-cv­
01348-AA, Doc. 12 & 19 (seventeen-page opening brief and eight-page reply brief).
3

See, e.g., Shipley v. Colvin, 2016 WL 5419422, *3 (D. Or. Sept. 29, 2016) (nineteen­
page opening brief); Jette v. Colvin, 2016 WL 4718217, *3 (D. Or. Aug. 9, 2016) (fout1een-page
opening brief and eleven-page reply brief); Smith v. Colvin, 2016 WL 3647969, *3 (D. Or. May
17, 2016) (seventeen-page opening brief); Savoie v. Comm'r ofSoc. Sec., 2016 WL 1572426, *4
(D. Or. Feb. 29, 2016) (twenty-page opening brief and seven-page reply brief); Myres v. Colvin,
2015 WL 7761168, *3 (D. Or. Nov. 12, 2015) (eighteen-page opening brief); Bostic v. As/rue,
2012 WL 4857594, *2 (D. Or. Sept. 18, 2012) (twenty-page opening briefand five-page reply
brief); Seamon v. Astrue, 2012 WL 4933269, *2 (D. Or. Sept. 18, 2012) (sixteen-page opening
brief).
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cases. It is therefore unsurprising that plaintiffs counsel is requesting compensation for roughly
twice as many hours as are requested in the typical Social Security case.
I "dismiss outright the argument that counsel's extensive experience in this area lends to the
unreasonableness of her billed hours. If anything, counsel's experience bolsters her judgment, to
which the Ninth Circuit would have me defer." Buzbee, 2016 WL 2756173 at *2.
I turn next to the Commissioner's argument regarding the grounds for remand. In this case,
this Court remanded based on a Social Security grid rule. Plaintiff devoted only one and a halfpages
out ofnearly fifty total pages ofbriefing to the grid rules. Nonetheless, I conclude there is no reason
to reduce the fee award due to limited success. This Court did not reject or even discuss any of
plaintiffs other arguments in remanding for an award ofbenefits, leaving open the possibility those
arguments might also have been winners on appeal.

Moreover, plaintiffs counsel obtained

"excellent results" - indeed, the best results possible - in the form of a remand for an immediate
award of benefits. Hensley, 461 U.S. at 435.
Finally, I note that plaintiffs counsel did not represent plaintiff before the ALJ or Appeals
Council. When an attorney did not represent the claimant at the administrative level, effective
advocacy on appeal requires obtaining familiarity with the record below- and that takes additional
time. See Winton v. Colvin, 2016 WL 2606706, *3 (D. Or. May 6, 2016).
The requested hours in the petition here are undoubtedly on the high end for Social Security
appeals, and in view of the size of the record, reasonable minds could differ about the choice to
spend this much time on the case. Under the circumstances of this case, however, I find that doubt
insufficient to justify a departure from the Ninth Circuit's directive to "generally defer to the winning
lawyer's professional judgment." Costa, 690 F.3d at 1136.
CONCLUSION
Plaintiffs Motion for Attorney Fees, Costs and Expenses Pursuant to Equal Access to Justice
Act (doc. 27) is GRANTED. Plaintiffs counsel, Nancy J. Meserow, is hereby awarded $11,613 .47
in attomey fees and $15.00 in costs on behalf of plaintiff.
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IT IS SO ORDERED.

Dated thisa,Jday ofNovember 2016.

~

Ann Aiken

United States District Judge

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