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Leatrice Cox v. Michael J. Astrue

May 24, 2012

LEATRICE COX, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

This matter is before the court on plaintiff's fully briefed motion for attorney fees pursuant to the Equal Access to Justice Act ("EAJA").

Plaintiff brought this action seeking judicial review of a final administrative decision denying her application for Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act ("the Act"). On September 9, 2011, following the filing of a motion for summary judgment by plaintiff and a cross-motion for summary judgment by defendant, the undersigned filed findings and recommendations recommending that plaintiff's motion for summary judgment be granted, the decision of the Commissioner be reversed and that this action be remanded further proceedings. Therein the court recommended that due to the Administrative Law Judge's ("ALJ's") failure to address the statement of a third party witness, this matter should be remanded for the purpose of allowing the ALJ to consider that third-party statement and to determine whether, if that statement were credited, additional limitations not previously considered were applicable in assessing plaintiff's Residual Functional Capacity. Those findings and recommendations were adopted in full by the assigned District Judge on September 28, 2011.

On December 27, 2011, plaintiff filed a motion for attorney fees seeking a fee award of $8,772.90 for 49.7 hours of attorney time expended in connection with this action. The 49.7 hours sought represents 18.1 hours expended by attorney Sengthiene Bosavanh from to 2008 through 2011, and 31.6 hours expended by attorney Jeffrey Baird in 2011. On January 17, 2012, defendant filed an opposition to plaintiff's motion for attorney fees. Therein, defendant argues that the government was substantially justified in defending the ALJ's decision and that the amount of hours expended by plaintiff's counsel in connection with this action were unreasonable. Plaintiff filed a reply on January 27, 2012.

The EAJA provides that "a court shall award to a prevailing party . . . fees and other expenses . . . incurred by that party in any civil action . . . brought by or against the United States . . . 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)(1)(A). See also Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). A "party" under the EAJA is defined as including "an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed[.]" 28 U.S.C. § 2412(d)(2)(B) (i). The term "fees and other expenses" includes "reasonable attorney fees." 28 U.S.C. § 2412(d)(2)(A). "The statute explicitly permits the court, in its discretion, to reduce the amount awarded to the prevailing party to the extent that the party 'unduly and unreasonably protracted' the final resolution of the case." Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998) (citing 28 U.S.C. §§ 2412(d)(1)(C) & 2412(d)(2)(D)).

A party who obtains a remand in a Social Security case is a prevailing party for purposes of the EAJA. Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) ("No holding of this Court has ever denied prevailing-party status . . . to a plaintiff who won a remand order pursuant to sentence four of § 405(g) . . . , which terminates the litigation with victory for the plaintiff.") . "An applicant for disability benefits becomes a prevailing party for the purposes of the EAJA if the denial of her benefits is reversed and remanded regardless of whether disability benefits ultimately are awarded." Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th Cir. 2001).

Here, the undersigned finds that plaintiff is the prevailing party. Moreover, the undersigned finds that plaintiff did not unduly delay this litigation, and that her net worth did not exceed two million dollars when this action was filed. With respect to the position taken by the Commissioner, defendant argues that the position of the Commissioner was substantially justified because "[b]ased on Circuit precedent and the factual record, the Commissioner reasonably argued that because [the third-party's] statements simply repeated Plaintiff's non-credible complaints, any error the ALJ made was harmless." (Def.'s Opp'n. (Doc. No. 46) at 5.) The undersigned, however, finds that argument unpersuasive. See Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006) (court could not conclude that "an ALJ's silent disregard of lay testimony about how an impairment limits a claimant's ability to work was harmless"); see also Robbins v. Social Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006) ("[W]e have only found harmless error when it was clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination,'" and "had never found harmless an 'ALJ's silent disregard of lay testimony about how an impairment limits a claimant's ability to work.'") (citing Stout, 454 F.3d at 1055-56); Gordon v. Astrue, No. 2:10-CV-1198 GGH, 2011 WL 3740832, at *8 (E.D. Cal. Aug. 24, 2011) (finding the ALJ's failure to address third-party statements was not harmless error where the statements corroborated plaintiff's testimony and complaints); Steele v. Astrue, No. CIV S-10-794 JFM (TEMP), 2011 WL 2709273, at *2 (E.D. Cal. July 12, 2011) (finding the ALJ's failure to consider third party statements could not be found harmless); Fonseca v. Astrue, No. EDCV 10-00470-MAN, 2011 WL 2412627, at *3 (C.D. Cal. June 10, 2011) ("Ms. Munoz's testimony both corroborates and expands upon plaintiff's testimony, and thus, contrary to defendant's contention, the ALJ's failure to address Ms. Munoz's testimony cannot be dismissed as harmless error."); Conley v. Astrue, No. 1:10-cv-00336 SKO, 2011 WL 1806968, at *10 (E.D. Cal. May 10, 2011) (finding the ALJ's failure to discuss third party testimony pertaining to plaintiff's ability to work was not harmless error).

The undersigned also finds that the position of the Commissioner was not substantially justified. See Corbin v. Apfel, 149 F.3d 1051, 1053 (9th Cir. 1998) ("While the government's defense on appeal of an ALJ's procedural error does not automatically require a finding that the government's position was not substantially justified, the defense of basic and fundamental errors such as the ones in the present case is difficult to justify."); Sampson v. Chater, 103 F.3d 918, 921-22 (9th Cir. 1996) (finding no substantial justification where the Commissioner "did not prove that her position had a reasonable basis in either fact or law" and "completely disregarded substantial evidence" of the onset of disability).

Turning to the question of the amount of fees sought by plaintiff's counsel, the EAJA expressly provides for an award of "reasonable" attorney fees. 28 U.S.C. § 2412(d)(2)A). Under the EAJA, hourly rates for attorney fees have been capped at $125.00 since 1996, but district courts are permitted to adjust the rate to compensate for an increase in the cost of living.*fn1

See 28 U.S.C. § 2412(d)(2)(A); Sorenson v. Mink, 239 F.3d 1140, 1147-49 (9th Cir. 2001); Atkins v. Apfel, 154 F.3d 986, 987 (9th Cir. 1998). Determining a reasonable fee "'requires more inquiry by a district court than finding the product of reasonable hours times a reasonable rate.'" Id. at 988 (quoting Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). The district court must consider "'the relationship between the amount of the fee awarded and the results obtained.'" Id. at 989 (quoting Hensley, 461 U.S. at 437).

Here, plaintiff's attorneys obtained an order for a new hearing despite defendant's cross-motion for summary judgment. Moreover, though defendant argues that plaintiff's "request for over almost 50 hours for this average and routine district court case is unreasonable," the undersigned disagrees, and finds the claimed 49.7 hours to be a reasonable amount of attorney time to have expended on this matter. While the issues presented may have been straightforward, 49.7 hours can be fairly characterized as comparable to the amount of time devoted to similar tasks by counsel in like social security appeals coming before this court.

See Boulanger v. Astrue, No. CIV S-07-0849 DAD, 2011 WL 4971890, at *2 (E.D. Cal. Oct. 19, 2011) (finding 58 hours to be a reasonable amount of time); Watkings v. Astrue, No. CIV S-06-1895 DAD, 2011 WL 4889190, at *2 (E.D. Cal. Oct. 13, 2011) (finding 62 hours to be a reasonable amount of time); Vallejo v. Astrue, No. 2:09-cv-03088 KJN, 2011 WL 4383636, at *5 (E.D. Cal. Sept. 20, 2011) (finding 62.1 hours to be a reasonable amount of time); Dean v. Astrue, No. CIV S-07-0529 DAD, 2009 WL 800174, at *2 (E.D. Cal. Mar. 25, 2009) (finding 41 hours to be a reasonable amount of time).

Nonetheless, after carefully reviewing the pending motion, the undersigned does find that a reduction in the amount of compensated time is warranted in this case. Specifically, the undersigned finds that the billing statement provided by plaintiff's counsel in support of the time expended by attorney Sengthiene Bosavanh, repeatedly reflects the billing of 0.1 hours (six minutes) for routine tasks that in fact would reasonably require less than 0.1 hours to complete. Thus, the aggregation of these .1 entries results in the billing of significantly more time than was likely actually expended on the noted tasks.

One Magistrate Judge of this court has explained the issue posed by the nature of similar billing entries by attorney Bosavanh, as follows:

Six-minute billing increments, which is how Ms. Bosavanh's time entries are recorded and presented, can be problematic when small tasks that require less than six minutes are recorded separately. Six-minute billing increments can result in a rounding-up that over-calculates the time actually spent on the tasks in total. Thus, for example, when eight separate tasks that require one minute each (for a total of eight minutes of time) are billed as eight discrete six-minute tasks, the billing reflects 48 minutes of time. In other words, eight minutes of actual time spent generates billing entries of 48 ...


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