(SS) Henderson v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: June 16, 2021
• Docket: 1:20-cv-00562
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 PATRICIA ANN HENDERSON, ) Case No.: 1:20-cv-0562 JLT ) 12 Plaintiff, ) ORDER GRANTING IN PART PLAINTIFF’S ) MOTION FOR ATTORNEY’S FEES 13 v. ) PURSUANT TO THE EQUAL ACCESS TO ) 14 COMMISSIONER OF SOCIAL SECURITY, ) JUSTICE ACT, 28 U.S.C. § 2412 ) 15 Defendant. ) (Doc. 22) ) 16 )

17 Stuart Barasch, attorney for Plaintiff Patricia Ann Henderson, seeks an award for fees pursuant 18 to the Equal Access for Justice Act under 28 U.S.C. § 2412(d). (Doc. 22) The Commissioner of Social 19 Security has not opposed the motion. Because the Administrative Law Judge’s decision was contrary 20 to established standards set forth by the Regulations and the Ninth Circuit, the decision and the 21 Commissioner’s defense thereof, was not substantially justified. For the reasons set forth below, the 22 motion for attorney fees under the EAJA is GRANTED in the modified amount of $6,077.28. 23 I. Background 24 In 2017, Plaintiff filed applications for a period of disability, disability insurance benefits, and 25 supplemental security income under Titles II and XVI of the Social Security Act. (Doc. 11-1 at 19.) 26 The Social Security Administration denied Plaintiff’s applications for benefits at the initial level and 27 upon reconsideration. (Id.) Plaintiff requested an administrative hearing and testified before an ALJ on 28 April 6, 2019. (Id. at 19, 42.) The ALJ concluded Plaintiff was not disabled and issued an order denying 1 benefits on May 30, 2019. (Id. at 19-33.) The Appeals Council denied Plaintiff’s request for review of 2 the decision on February 19, 2020 (id. at 5-7), and the ALJ’s determination became the final decision of 3 the Commissioner. 4 Plaintiff initiated the action before this Court on April 20, 2020, seeking judicial review of the 5 ALJ’s decision. (Doc. 1.) The parties exchanged confidential letter briefs, and Plaintiff filed her 6 opening brief on December 10, 2020. (Doc. 16.) On February 8, 2021, the parties filed a stipulation 7 for the matter to be remanded for an ALJ to issue a new decision. (Doc. 19.) Pursuant to the terms of 8 the stipulation, the Court remanded the matter for further proceedings pursuant to sentence four of 42 9 U.S.C. § 405(g), and judgment was entered in favor of Plaintiff on February 9, 2021. (Docs. 20, 21.) 10 Following the entry of judgment, Plaintiff filed the motion for fees under the EAJA now 11 pending before the Court. (Doc. 22.) The Court ordered the Commissioner to file “[a]ny opposition to 12 the motion, or a notice of non-opposition . . . no later than June 9, 2021.” (Doc. 23 at 1, emphasis 13 omitted.) To date, the Commissioner has not filed an opposition to the motion or otherwise responded 14 to Plaintiff’s request for fees. 15 II. Legal Standards for EAJA Fees 16 The EAJA provides that a court shall award fees and costs incurred by a prevailing party “in 17 any civil action . . . including proceedings for judicial review of agency action, brought by or against 18 the United States . . . unless the court finds that the position of the United States was substantially 19 justified or that special circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). A party 20 eligible to receive an award of attorney fees under the EAJA must be the prevailing party who 21 received a final judgment in the civil action. 28 U.S.C. § 2412(d)(2)(H). 22 The party seeking the award of EAJA fees has the burden of proof that fees requested are 23 reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 434, 437 (1983); see also Atkins v. Apfel, 154 24 F.3d 988 (9th Cir. 1998) (specifically applying these principles to fee requests under the EAJA). As a 25 result, “[t]he fee applicant bears the burden of documenting the appropriate hours expended in the 26 litigation, and must submit evidence in support of those hours worked.” Gates v. Deukmejian, 987 27 F.2d 1392, 1397 (9th Cir. 1992); see also 28 U.S.C. § 2412(d)(1)(B) (“A party seeking an award of 28 fees and other expenses shall . . . submit to the court an application for fees and other expenses which 1 shows . . . the amount sought, including an itemized statement from any attorney . . . stating the actual 2 time expended”). 3 Where documentation of the expended time is inadequate, the court may reduce the requested 4 award. Hensley, 461 U.S. at 433, 436-47. Further, “hours that were not ‘reasonably expended” should 5 be excluded from an award, including “hours that are excessive, redundant, or otherwise unnecessary.” 6 Id. at 434. A determination of the number of hours reasonably expended is within the Court’s 7 discretion. Cunningham v. County of Los Angeles, 879 F.2d 481, 484-85 (9th Cir. 1988). 8 III. Discussion and Analysis 9 A claimant who receives a sentence four remand in a Social Security case is a prevailing party 10 for EAJA purposes. Shalala v. Schaefer, 509 U.S. 292, 301-02 (1993); Flores v. Shalala, 49 F.3d 562, 11 568 (9th Cir. 1995). Consequently, Plaintiff was the prevailing party. 12 A. Whether Defendant’s position was substantially justified 13 The Supreme Court has defined “substantially justified” as “justified to a degree that could 14 satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). In addition, “[a] 15 substantially justified position must have a reasonable basis in both law and fact.” Gutierrez v. 16 Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001). 17 Establishing that a position was substantially justified is a two-step process. 28 U.S.C. § 18 2412(d)(2)(D). First, “the action or failure to act by the agency” must be substantially justified. Id. 19 Second, the Commissioner’s position taken in the civil action must be substantially justified. Id. The 20 inquiry into whether the government had a substantial justification must be found on both inquiries. 21 Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1998). Thus, both the ALJ’s decision and the 22 Commissioner’s arguments to the Court in defense of the administrative decision must have been 23 substantially justified. To find that a position was substantially justified when based on violations of 24 the Constitution, federal statute, or the agency’s own regulations, is an abuse of discretion. Sampson v. 25 Chater, 103 F.3d 918, 921 (9th Cir. 1996). 26 The burden of proof that the position was substantially justified rests on the government. 27 Scarborough v. Principi, 54 U.S. 401, 403 (2004); Gonzales v. Free Speech Coalition, 408 F.3d 613, 28 618 (9th Cir. 2005). However, the Commissioner does not argue that the administrative decision was 1 substantially justified. Further, the Commissioner stipulated to a voluntary remand after Plaintiff filed 2 a motion for summary judgment and did not defend the ALJ’s determination before this Court. Thus, 3 the Court finds the ALJ’s decision was not substantially justified. 4 B. Reasonableness of the Fees Requested 5 The Ninth Circuit determined courts may not apply de facto caps limiting the number of hours 6 attorneys can reasonably expend on “routine” social security cases. See Costa v. Comm’r of Soc. Sec. 7 Admin., 690 F.3d 1132, 1133-37 (9th Cir. 2012) (“we question the usefulness of reviewing the amount 8 of time spent in other cases to decide how much time an attorney could reasonably spend on the 9 particular case before the court”). Instead, “courts should generally defer to the ‘winning lawyer’s 10 professional judgment as to how much time he was required to spend on the case.’” Id. at 1136, quoting 11 Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). Nevertheless, the Court has an 12 independent duty to review the evidence of hours worked and tasks undertaken to determine the 13 reasonableness of the fees requested for the case. Hensley, 461 U.S. at 433, 436-47. 14 Mr. Barasch reports that several attorneys with Olinsky Law Group worked on this action, 15 including Mr. Barasch, Howard Olinsky, Edward Wicklund, and Mary McGarigal. (Doc. 22-1 at 3.) 16 Tasks completed by the attorneys and professional staff with Olinsky Law Group include 17 communicating with Plaintiff; reviewing the ALJ’s decision and the administrative record that was 18 approximately 650 pages long; drafting Plaintiff’s complaint, confidential letter brief, and opening 19 brief; and preparing the request for EAJA fees now pending before the Court. (See Doc. 22-2 at 2-3.) 20 According to Mr. Barasch, he and the other attorneys expended 28.3 hours on work related to Plaintiff’s 21 appeal, including 27.3 hours in 2020 and 1.0 hour in 2021. (Doc. 22-3 at 2.) In addition, the timesheets 22 indicate eight paralegals with the firm expended 6.7 hours on Plaintiff’s appeal. (Doc. 22-4 at 2.) 23 1. Duplicative tasks 24 The time sheets provided by counsel indicate several duplicated tasks due to the number of 25 individuals who worked on the action. For example, after Mary McGarigal drafted Plaintiff’s 26 confidential letter brief, the document was reviewed and approved by Edward Wicklund, who billed 27 0.6 hours for his review and approval. (See Doc. 22-2 at 2.) Stuart Barasch then indicated that he 28 1 spent 0.3 reviewing the same letter brief, which he indicates that he reviewed, “finalize[d],” and filed.1 2 (Id.) Given the duplicative nature of the tasks performed by Mr. Wicklund and Mr. Barasch after the 3 document was drafted by Ms. McGarigal, the Court will deduct 0.9 hours of attorney time. See 4 Gibson v. City of Chicago, 873 F.Supp.2d 975, 987 (N.D. Ill. 2012) (eliminating time entries for 5 duplicative tasks); see also Lang v. Saul, 2020 WL 4339496 at *4 (E.D. Cal. July 28, 2020) (declining 6 to award time spent on reviewing the documents drafted by others at Olinsky Law Group). 7 The timesheets also indicate duplicated reviews of the opening brief. Mary McGarigal 8 indicated that she spent 15 hours drafting the opening brief. (Doc. 22-2 at 2.) Mr. Wicklund indicates 9 that he spent 1.0 hour related to a “senior review of the draft brief” and Mr. Barasch also reviewed the 10 brief for 0.3 hours. There is no explanation why the draft brief required two other attorneys to review 11 it prior to filing. Thus, the Court will deduct 1.3 hours of attorney time from the fee award for the 12 duplicative nature of the document review. See Gibson, 873 F.Supp.2d at 987. 13 Finally, the timesheets indicate duplicative efforts related to the motion for EAJA fees now 14 pending before the Court. The firm’s records indicate the motion was prepared by a paralegal, after 15 which Mr. Olinksy indicated he reviewed the EAJA timesheets and “Finalize[d] EAJA Narrative.” 16 (Doc. 22-3 at 3.) However, after Mr. Olinsky reported he finalized the document, Shannon Peressi and 17 Mr. Barasch also billed 0.7 hour and 0.1 hour respectively, for finalizing the document and review the 18 draft. (Id.). Therefore, the Court will deduct 0.8 hour of time from the fee award for the duplicative 19 nature of the document review. See Saul, 2020 WL 4339496 at *4. 20 2. Clerical tasks 21 The Supreme Court determined that “purely clerical work or secretarial tasks should not be 22 billed at a paralegal or lawyer’s rate, regardless of who performs them.” Missouri v. Jenkins, 491 U.S. 23 274, 288 n. 10 (1989). For example, the time spent to e-file documents is routinely found to be clerical 24 work that is non-compensable. See L.H. v. Schwarzenegger, 645 F. Supp. 2d 888, 899 (E.D. Cal. 2009) 25 (finding organizing and updating files was clerical, and declining to award fees where the applicant 26 “tendered no evidence that these are tasks that required the skill of a paralegal”). In addition, courts in 27

28 1 Notably, the confidential letter briefs exchanged by the parties are not filed with the Court, and Plaintiff did not 1 the Ninth Circuit have determined drafting and preparing documents related to service of process are 2 clerical tasks and reduced the number of hours awarded as fees accordingly. See, e.g., Kirk v. Berryhill 3 244 F. Supp. 3d 1077, 1084 (E.D. Cal. 2017) (“drafting letters and preparing documents related to 4 representation and service of process …. could have been completed by experienced support staff”); 5 Bailey v. Colvin, 2013 WL 6887158, at *4 (D. Or. Dec. 31, 2013) (denying fees for “service of process” 6 because “the Court may not award fees for clerical work even when the work is performed by 7 attorneys”). Because the timesheets submitted by Plaintiff include 0.6 hours for service of process by 8 Jordan Harcleroad, this time will be deducted from the fee award due to its clerical nature. 9 3. Hourly rates 10 Plaintiff requests “an hourly rate of $207.78 for attorney time in 2020 and 2021” and $125.00 11 for paralegal time. (Doc. 22-1 at 2.) Notably, the attorney hourly rates are consistent with the 12 statutory maximum set by the Ninth Circuit for 2020, and the requested paralegal rate is within the 13 range of accepted rates in the Fresno Division of the Eastern District of California. See “Statutory 14 Maximum Rates Under the Equal Access to Justice Act,” available at 15 http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited June 15, 2021); see 16 also Silvester v. Harris, 2014 WL 7239371 at *4 (E.D. Cal. Dec. 2014) (“The current reasonable 17 hourly rate for paralegal work in the Fresno Division ranges from $75 to $150, depending on 18 experience”). Consequently, the Court finds the hourly rates requested are reasonable. 19 4. Amount to be awarded 20 With the deductions set forth above, attorneys with Olinsky Law Group expended a total of 26 21 hours on compensable work in this action on behalf of Plaintiff. The paralegals and professional staff 22 expended a total of 5.4 compensable hours this action. The Court finds the total of 31.4 hours to be 23 reasonable in light of the tasks performed by counsel and the professional staff, which resulted in a 24 remand for further proceedings. Accordingly, Plaintiff is entitled to an award of $6,077.28, which 25 includes $5,402.28 for work completed by counsel and $675.00 for work completed by the paralegals. 26 C. Expenses 27 Plaintiff seeks “expenses in the amount of $17.25 for reimbursement of the service of process 28 expenses.” (Doc. 22-1 at 3.) Significantly, however, the Court granted Plaintiff’s request to proceed 1 in forma pauperis in this action and directed the U.S. Marshal “serve a copy of the complaint, 2 summons, and this order upon the defendant.” (Doc. 4 at 4.) When a plaintiff proceeds in forma 3 pauperis and the U.S. Marshal has been directed to complete service, the plaintiff may not recover 4 expenses related to service. DeArmon v. Colvin, 2013 U.S. Dist. LEXIS 137858 at *5 (E.D. Cal. Sept. 5 25, 2013). Accordingly, Plaintiff’s request for expenses is DENIED. 6 D. Assignment of the Fee Award 7 Plaintiff requests that the EAJA fee award be made payable to counsel, pursuant to a fee 8 agreement she signed. (See Doc. 22-1 at 3.) In Astrue v. Ratliff, 560 U.S. 586 (2010), the Supreme 9 Court determined that EAJA fees must be made payable to the “prevailing party.” As a result, the 10 payment is subject to a government offset to satisfy any pre-existing debt owed by a claimant. See id., 11 560 U.S. at 592-93. Notably, under the Anti-Assignment Act, a claim against “the United States may 12 not be assigned to a third party unless [certain] technical requirements are met.” United States v. Kim, 13 806 F.3d 1161, 1169 (9th Cir. 2015); 31 U.S.C. § 3727. “[I]n modern practice, the obsolete language of 14 the Anti-Assignment Act means that the Government has the power to pick and choose which 15 assignments it will accept and which it will not.” Kim, 806 F.3d at 1169-70. In addition, the Anti- 16 Assignment Act “applies to an assignment of EAJA fees in a Social Security Appeal for disability 17 benefits.” Yesipovich v. Colvin, 166 F.Supp.3d 1000, 1011 (N.D. Cal. 2015). 18 Because Plaintiff has assigned her rights to counsel, the EAJA fees should be made payable 19 directly to Plaintiff’s counsel, subject to any government debt offset and the government’s waiver of 20 the Anti-Assignment Act requirements. See Yesipovich, 166 F.Supp at 1011; see also Beal v. Colvin, 21 2016 U.S. Dist. LEXIS 124272 (N.D. Cal. Sept. 13, 2016) (holding where there was “no information 22 on whether plaintiff owes any debt to the government[,]… the EAJA fee shall be paid directly to 23 plaintiff's counsel, subject to any administrative offset due to outstanding federal debt and subject to 24 the government’s waiver of the requirements under the Anti-Assignment Act”). If the government 25 chooses to not accept the assignment, payment shall be made to Plaintiff and mailed to her attorney. 26 IV. Conclusion and Order 27 As a prevailing party, Plaintiff is entitled to an award of attorney’s fees under the EAJA 28 because the ALJ’s decision was not substantially justified, and the Commissioner did not defend it 1 before this Court. See 28 U.S.C. § 2412(d)(2)(H). With the deductions set forth above, Olinsky Law 2 Group expended a total 31.4 hours on compensable work in this action, which is reasonable in light of 3 the tasks performed on Plaintiff’s behalf and results achieved. Based upon the foregoing, the Court 4 ORDERS: 5 1. Plaintiff’s motion for attorney’s fees (Doc. 22) is GRANTED in part, in the modified 6 amount of $6,077.28; 7 2. Plaintiff’s request for expenses is DENIED; 8 3. Defendant SHALL determine whether Plaintiff’s EAJA attorney fees are subject to any 9 offset and, if the fees are not subject to an offset, payment shall be made payable to 10 Plaintiff. If the Government decides to accept the assignment of fees, payment shall be 11 made payable to Counsel, Stuart Barasch; and 12 4. Payment SHALL be mailed to Plaintiff’s counsel of record, Stuart Barasch. 13 14 IT IS SO ORDERED.

15 Dated: June 16, 2021 _ /s/ Jennifer L. Thurston 16 CHIEF UNITED STATES MAGISTRATE JUDGE

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