Nunn v. Commissioner Social Security Administration
Filing
42
OPINION AND ORDER. For the foregoing reasons, the Court GRANTS IN PART Plaintiff's amended application for EAJA fees (ECF No. 36 ), and awards attorney's fees in the amount of $15,956.02. The Court denies as moot Plaintiff's original application for EAJA fees (ECF No. 34 ). IT IS SO ORDERED. Signed on 10/18/2018 by Magistrate Judge Stacie F. Beckerman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JANET N.,1
Plaintiff,
Case No. 6:17-cv-00203-SB
OPINION AND ORDER
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
BECKERMAN, U.S. Magistrate Judge.
This matter comes before the Court on Janet N.’s (“Plaintiff”) amended application
pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), for reimbursement
of attorney’s fees she incurred in litigating her case. The Commissioner of the Social Security
Administration (“Commissioner”) opposes Plaintiff’s application on the ground that the amount
of fees Plaintiff requests is not reasonable. For the reasons that follow, the Court grants in part
1
In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party or parties in this case. Where applicable, this opinion uses
the same designation for a non-governmental party’s immediate family member.
PAGE 1 – OPINION AND ORDER
Plaintiff’s amended application and awards Plaintiff her attorney’s fees in the amount of
$15,956.02.2
BACKGROUND
Plaintiff applied for disability insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act. She alleged that her ability to work was limited by a
variety of ailments, including fibromyalgia. An Administrative Law Judge (“ALJ”) determined
that Plaintiff had the residential functional capacity (“RFC”) to perform a modified version of
light exertion work, and that there were jobs existing in sufficient numbers in the national
economy that Plaintiff could perform. The ALJ therefore concluded that Plaintiff was not
disabled and denied her applications for benefits. Plaintiff timely appealed to federal district
court.
Plaintiff filed a 35-page opening brief and 11-page reply brief on appeal. In her opening
brief, Plaintiff argued that the ALJ erred by: (1) failing to provide clear and convincing reasons
for discounting Plaintiff’s symptom testimony; and (2) failing to provide legally sufficient
reasons for discounting the opinions of Plaintiff’s examining physician, Dr. Harry Krulewitch
(“Dr. Krulewitch”), and treating physicians, Drs. Patrick Rask (“Dr. Rask”) and Robert Kaye
(“Dr. Kaye”).
After the reviewing the parties’ briefs and the 1,379-page amended transcript, the Court
issued a 37-page Opinion and Order, wherein the Court concluded that the ALJ erred in
discounting Plaintiff’s subjective symptom testimony and the opinions of Drs. Krulewitch and
2
Plaintiff inadvertently omitted the signatory page to her fee agreement when she filed
her original EAJA fee application. As a result, Plaintiff filed an amended application later that
same day. In light of the foregoing, the Court denies as moot Plaintiff’s original application
(ECF No. 34).
PAGE 2 – OPINION AND ORDER
Rask.3 The Court reversed the Commissioner’s decision and remanded for an award of benefits
because Plaintiff satisfied all three conditions of the credit-as-true rule, and because the Court
did not have any serious doubt as to whether Plaintiff was disabled.
The Court entered judgment on May 16, 2018, remanding to the ALJ for an award of
benefits. The Commissioner did not appeal.
DISCUSSION
I.
LEGAL STANDARDS
“The EAJA provides for the award of attorney’s fees to a party that prevails against the
United States in a proceeding for review of an agency action, unless the court finds ‘that the
position of the United States was substantially justified or that special circumstances make an
award unjust.’” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012)
(quoting 28 U.S.C. § 2412(d)(1)(A)). The Commissioner does not assert that the agency’s
position was substantially justified. Rather, the Commissioner asserts only that the amount of
fees Plaintiff requests is not reasonable. See 28 U.S.C. § 2412(d)(2)(A) (explaining that for
purposes of the EAJA, “fees and other expenses,” includes, among other things, “reasonable
attorney fees”).
The Ninth Circuit has held that courts should apply the “lodestar” method to determine a
reasonable EAJA fee award. See Costa, 690 F.3d at 1135 (“[W]hat is now called the ‘lodestar’
method . . . [should be applied] to determine what constitutes a reasonable fee award under the
EAJA.”). To calculate the lodestar amount, “a district court must start by determining how many
hours were reasonably expended on the litigation,” Moreno v. City of Sacramento, 534 F.3d
1106, 1111 (9th Cir. 2008), and then multiply “‘the number of hours reasonably expended on the
3
In light of these errors, the Court declined to address whether the ALJ also erred in
discounting Dr. Kaye’s opinion.
PAGE 3 – OPINION AND ORDER
litigation by a reasonable hourly rate.” Costa, 690 F.3d at 1135 (ellipses omitted) (quoting
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).
II.
REASONABLENESS OF REQUESTED FEES
Plaintiff seeks 71.80 hours at an hourly rate of $196.79; 11.25 hours at an hourly rate of
$200.78; and 2.5 legal assistant hours at an hourly rate of $90.00.4 The Commissioner does not
object to Plaintiff’s proposed hourly rates. The Commissioner does, however, object to the
number of hours Plaintiff asserts were reasonably expended on this litigation. To determine how
many hours were reasonable, courts assess whether counsel for the prevailing party exercised
“billing judgment” and excluded hours that were “excessive, redundant, or otherwise
unnecessary as a lawyer in private practice would do.” Costa, 690 F.3d at 1135 (quotation marks
omitted) (citing Hensley, 461 U.S. at 434). The Commissioner challenges as excessive the
number of hours Plaintiff spent (1) on her opening brief; and (2) reviewing the case and
transcript.
A.
Opening Brief
The Commissioner argues that the 33.4 hours Plaintiff “spent drafting her opening brief
was both excessive and unnecessary.”5 (See Def.’s Resp. at 3.) In support of this argument, the
Commissioner asserts that: (1) Plaintiff’s opening brief addressed whether the ALJ erred in
4
Plaintiff seeks the statutory maximum hourly rates for the years at issue. See Statutory
Maximum Rates Under the Equal Access to Justice Act,
https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited Oct. 18, 2018)
(stating that “the applicable statutory maximum hourly rates under EAJA, adjusted for increases
in the cost of living,” are $196.79 for 2017 and $200.78 for 2018); see also Pope v. Comm’r Soc.
Sec., No. 3:10-cv-06019-PK, 2011 WL 7462036, at *4 (D. Or. Dec. 29, 2011) (finding “the rate
of $90.00 per hour for non-clerical legal assistant work to be reasonable”).
5
The Commissioner asserts that Plaintiff spent 35.65 hours drafting the opening brief,
but Plaintiff’s itemization indicates that the accurate total is 33.4 hours (9 hours plus 4.35 hours
plus 6.5 hours plus 4.15 hours plus 8.65 hours plus 0.75 hours equals 33.4 hours). (See Decl.
Counsel Re EAJA Hours (“First Graf Decl.”) at 2, July 17, 2018.)
PAGE 4 – OPINION AND ORDER
rejecting Plaintiff’s testimony and medical opinion evidence, which are issues that are “routinely
litigated in disability cases”; (2) Plaintiff’s arguments concerning her primary impairment of
fibromyalgia were “short and conclusory”; and (3) although Plaintiff’s opening brief was 35
pages long, Plaintiff devoted “a mere nine pages” to arguing the merits of her case. (Def.’s Resp.
at 3.)
The Commissioner claims that this case was routine because it concerned whether the
ALJ provided legally sufficient reasons for rejecting Plaintiff’s testimony and medical opinion
evidence. The Ninth Circuit has “note[d] that the term ‘routine’ is a bit of a misnomer as social
security disability cases are often highly fact-intensive and require careful review of the
administrative record, including complex medical evidence.” Costa, 690 F.3d at 1134 n.1.
Whether a social security case is routine is a case-specific inquiry. See id. at 1136 (noting that an
assessment of “how much time an attorney can reasonably spend on a specific case . . . will
always depend on case-specific factors including, among others, the complexity of the legal
issues”).
The Court disagrees that the legal issues in this case were routine. The outcome of this
case turned largely on whether the ALJ sufficiently evaluated Plaintiff’s testimony and medical
opinion evidence in light of Plaintiff’s fibromyalgia diagnosis. “For a long time, fibromyalgia
was ‘poorly understood [even] within much of the medical community.’” Revels v. Berryhill, 874
F.3d 648, 656 (9th Cir. 2017) (citation omitted). In addition, ALJs continue to commit errors that
arise “from an apparent fundamental misunderstanding of fibromyalgia.” See id. (noting that the
ALJ committed several errors that “arose from an apparent fundamental misunderstanding of
fibromyalgia,” which “appears to be a recurrent problem”). That is what happened here. See
Nunn v. Berryhill, No. 17-cv-00203-SB, 2018 WL 2244705, at *10-16 (D. Or. May 16, 2018)
PAGE 5 – OPINION AND ORDER
(noting that fibromyalgia can be confirmed as a severe impairment without objective testing and
that normal exams, images, and test results are not necessarily inconsistent with debilitating
fibromyalgia, and holding that the ALJ erred in discounting Plaintiff’s testimony and Drs.
Krulewitch and Rask’s opinions based on, inter alia, unremarkable objective evidence). That is
also what happened when Plaintiff first appealed her case to federal court. (See Pl.’s Opening Br.
at 27, noting that a judge from this district previously held that the ALJ erred in discounting
Plaintiff’s testimony and failed to consider the unique characteristics of fibromyalgia). In light of
this “recurrent problem,” this case was not routine.
The Commissioner also notes that Plaintiff devoted only nine pages of her opening brief
to her merits argument. In this Court’s view, Plaintiff should not be faulted for devoting a
significant portion of her opening brief to describing, among other things, the record evidence
and procedural history, because this case was highly fact-intensive and required a careful review
of the administrative record.6 Plaintiff’s arguments also depended on, and referred to, her
discussion of the record and case history. (See, e.g., Pl.’s Opening Br. at 30-31, arguing that the
ALJ’s “selective summary of the record . . . is at odds with the vast majority of the medical
record,” the ALJ “repeated the same [erroneous] reasoning as his predecessor,” as Plaintiff
“summarized above,” and a “review of the entire medical record from 2003 to 2016” fails to
support the ALJ’s finding that “the record strongly suggests that the claimant’s unemployment is
due to her desire to be a full time homemaker”). Further, although the Commissioner claims that
Plaintiff’s fibromyalgia arguments were “short and conclusory,” all of the assignments of error,
including those detailed further in Plaintiff’s reply brief, implicated the ALJ’s apparent
misunderstanding of fibromyalgia. See Nunn, 2018 WL 2244705, at *15-16 (holding that the
Indeed, this Court’s 37-page Opinion and Order devoted roughly 14 pages to the
background section detailing the record evidence and procedural history.
6
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ALJ erred in discounting Drs. Krulewitch and Rask’s opinions based on the same objective
evidence cited in support of the ALJ’s erroneous credibility finding).
That said, the Court notes that Plaintiff spent approximately 6.25 hours drafting her 17page opening brief for her first appeal.7 By comparison, Plaintiff spent approximately 33.4 hours
drafting her 35-page opening brief for this appeal. Given the fact that both appeals involved the
same claimant, the same drafting attorney, and some of the same evidence and arguments, and
given the disparity between the number of hours billed drafting a 17-page brief (6.25 hours)
compared to a 35-page brief (33.4 hours), the Court concludes that it should exercise its
discretion and reduce the number of hours Plaintiff requests by 10 percent (i.e., 33.4 hours
multiplied by 0.10 equals a reduction of 3.34 hours).8 See Costa, 690 F.3d at 1136 (noting that “a
district court can impose a reduction of up to 10 percent—a ‘haircut’—based purely on the
exercise of its discretion and without more specific explanation” (citing Moreno, 534 F.3d at
1112)). Since the time billed for drafting Plaintiff’s opening brief occurred in December 2017,
the 3.34-hour reduction will result in a $657.28 reduction in the amount of attorney’s fees
Plaintiff requests (i.e., 3.34 hours multiplied by the 2017 hourly rate of $196.79 equals $657.28).
///
The Court takes judicial notice of the filings from Plaintiff’s first appeal. See Reyn’s
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (indicating that district
courts “may take judicial notice of court filings and other matters of public record”); see also
FED. R. EVID. 201(c) (indicating that the district court may take judicial notice on its own
motion).
7
In Costa, the Ninth Circuit “question[ed] the usefulness of reviewing the amount of
time spent in other cases to decide how much time an attorney could reasonably spend on the
particular case before the court,” and noted that “assessing how much time an attorney can
reasonably spend on a specific case . . . will always depend on case-specific factors.” 690 F.3d at
1136. However, reviewing the time spent in a prior SSA appeal is useful where, as here, the
court can compare how much time the same attorney spent on similar matters involving the same
claimant.
8
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B.
Case and Transcript Review
The Commissioner also argues that the number of hours Plaintiff spent reviewing the
case and transcript is unreasonable. The Commissioner argues that the 1,379-page amended
transcript is a “length that is typical of Social Security disability cases,” and notes that Plaintiff’s
counsel is familiar with the transcript because he represented Plaintiff during her first appeal in
2010 and during the August 2016 hearing before the ALJ. (Def.’s Resp. at 3.) In light of
Plaintiff’s counsel’s familiarity with this case and record, the Commissioner argues that the
36.15 hours spent reviewing the case and transcript was unreasonable.9
From this Court’s experience, a typical Social Security transcript is roughly 600 to 800
pages. (Cf. Decl. Counsel Re Pl.’s Reply Def.’s Resp. (“Second Graf Decl.”) ¶¶ 3-4, Aug. 5,
2018, stating that Plaintiff’s counsel has “22 years of experience as a federal court appeal social
security attorney,” and that Plaintiff’s counsel’s experience leads him to believe that “the average
transcript in a federal court case is around 600 pages”). Further, Plaintiff’s counsel represents
that he had to spend an additional 12.5 hours reviewing and discussing the transcript because the
originally-filed transcript was defective. (Pl.’s Reply at 2.) Plaintiff’s counsel also needed “to go
back and re-review the facts in this case” because he “had a full plate of other cases on his
docket,” and because the record continued to be supplemented over the course of the years-long
appeals process, which included three ALJ decisions, one Appeals Council reversal, and a
federal court remand. (Pl.’s Reply at 3-4.)
The Commissioner asserts that Plaintiff spent 33.4 hours reviewing “the case and
transcript” (Def.’s Resp. at 4), but Plaintiff’s itemization suggests that she spent 36.15 hours
(6.75 hours plus 6.25 hours plus 4.25 hours plus 0.5 hours plus 1 hour plus 0.5 hours plus 4.65
hours plus 7.4 hours plus 2.5 hours plus 2.35 hours equals 36.15 hours). (See First Graf Decl. at
2.)
9
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The Court notes that the transcript in this case is three times longer than the transcript
from the first appeal. Plaintiff spent 9.25 hours reviewing the case and transcript in the first
appeal, and the Commissioner stipulated to the reasonableness of this amount of time.
(Stipulated Appl. EAJA Fees Attach. 1.) In comparison, Plaintiff spent approximately 36.15
hours reviewing the case and transcript in this appeal, but the transcript was three times longer, a
number of years had passed, a number of decisions were issued after the first appeal, and 12.5
hours were attributable to a defective transcript.
For these reasons, the Court concludes that the 36.15 hours counsel spent reviewing the
case and transcript was reasonable. See also Moreno, 534 F.3d at 1112 (stating that “determining
whether work is unnecessarily duplicative is no easy task,” that “a lot of legal work,” including
legal research, “will grow stale” when “a case goes on for many years,” that “a competent lawyer
won’t rely entirely on last year’s, or even last month’s, research,” that “[o]ne certainly expects
some degree of [necessary] duplication as an inherent part of the process” of litigating a twiceappealed case, and that “[t]here is no reason why the lawyer should perform this necessary work
for free”).
III.
LODESTAR CALCULATION
As discussed above, the Court imposes a ten percent “haircut” to the 33.4 hours Plaintiff
requests for drafting her opening brief in 2017. 68.46 hours (i.e. 71.8 hours minus the reduction
of 3.34 hours) multiplied by the 2017 hourly rate of $196.79 equals $13,472.24; 11.25 hours
multiplied by the 2018 hourly rate of $200.78 equals $2,258.78; and 2.5 legal assistant hours
billed at the uncontested hourly rate of $90.00 equals $225.00. This calculation results in an
EAJA fee award in the amount of $15,956.02 ($13,472.24 plus $2,258.78 plus $225.00 equals
$14,930.75).
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The Commissioner argues that a ten percent “haircut” is insufficient, and that the Court
should reduce Plaintiff’s EAJA fees to “no more than thirty hours.” (Def.’s Resp. at 4-5.) In
other words, the Commissioner argues that the Court should reduce the number of hours by
roughly 65 percent, but she fails adequately to explain why only 30 hours is reasonable. The
Court may not reduce the number of hours in a fee petition with an eye toward a target range. See
Costa, 690 F.3d at 1136-37 (explaining that a court needs to “provide relatively specific reasons”
for making a “significant reduction[]” of 33 percent or more and noting that many district courts
have recognized that 20 to 40 hours is the range often granted and requested in Social Security
cases, but adding that a district court may not make “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 provided” in that specific case). Accordingly, a reduction to
30 hours is not appropriate here.
CONCLUSION
For the foregoing reasons, the Court GRANTS IN PART Plaintiff’s amended application
for EAJA fees (ECF No. 36), and awards attorney’s fees in the amount of $15,956.02. The Court
denies as moot Plaintiff’s original application for EAJA fees (ECF No. 34).
IT IS SO ORDERED.
DATED this 18th day of October, 2018.
STACIE F. BECKERMAN
United States Magistrate Judge
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