(SS) Kinney v. Commissioner of Social Security ( 2023 )

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 MARY ROSEANNE KINNEY, No. 1:21-cv-00554-GSA 5 Plaintiff, 6 v. ORDER GRANTING PLAINTIFF’S UNOPPOSED MOTION FOR EAJA 7 KILOLO KIJAKAZI, Commissioner of ATTORNEY’S FEES Social Security, 8 (Doc. 24) 9 Defendant. 10 I. Introduction and Procedural Background 11 On April 1, 2021 Plaintiff Mary Roseanne Kinney (“Plaintiff”) sought judicial review of a 12 final decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying 13 her application for social security benefits. Doc. 1. The Commissioner filed the Certified 14 Administrative Record on June 30, 2022. Doc. 18. On August 15, 2022, Plaintiff filed a motion 15 for summary judgment. Doc. 20. Defendant filed no response. Rather, on September 29, 2022 the 16 parties stipulated to remand the matter to the agency for further proceedings under sentence four of 17 42 U.S.C. 405(g). Doc. 21. Judgment was entered in Plaintiff’s favor. Doc. 23. 18 Plaintiff now moves for an award of attorneys’ fees pursuant to the Equal Access to Justice 19 Act (EAJA), 28 U.S.C. § 2412(d), seeking $7,831.44 in fees and $627.00 in costs.1 Doc. 24. In 20 support of the request, Plaintiff’s counsel filed a declaration containing billing and time records. 21 Doc. 24-1. 22 II. Discussion 23 A. Substantial Justification 24 1. Legal Standard 25 A party seeking an award of fees and other expenses shall, within thirty days of final 26 judgment in the action, submit to the court an application for fees and other expenses 27 1 Although counsel did not itemize his costs, it is apparent that the $627 he seeks corresponds to the $402 filing fee 28 plus the $225 fee for admission pro hac vice. 1 which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from 2 any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were 3 computed. The party shall also allege that the position of the United States was not 4 substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the 5 record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which fees and other expenses 6 are sought. 7 28 U.S.C. § 2412(d)(1)(B). 8 A plaintiff appealing a denial of Social Security benefi ts need not be awarded benefits to be 9 considered a prevailing party. Shalala v. Schaefer, 509 U.S. 292, 300 (1993). A plaintiff who 10 11 obtains a remand order pursuant to sentence four of 42 U.S.C. § 405(g) is also considered a 12 prevailing party under the EAJA. Id. A prevailing party is entitled to a fee award when the position 13 of the United States was not substantially justified. See 28 U.S.C. § 2412(d)(1)(B). While the 14 prevailing party must only allege that the position of the United States was not substantially 15 justified, the United States must carry the burden of establishing substantial justification. See 28 16 U.S.C. § 2412(d)(1)(B); Scarborough v. Principi, 541 U.S. 401, 414 (2004). 17 “To establish substantial justification, the government need not establish that it was correct 18 19 or ‘justified to a high degree’ . . . only that its position is one that ‘a reasonable person could think 20 it correct, that is, has a reasonable basis in law and fact.’” Ibrahim v. DHS, 912 F.3d 1147, 1167 21 (9th Cir. 2019) (en banc) (quoting Pierce v. Underwood, 487 U.S. 552 (1988)). The substantial 22 justification standard is satisfied if there is a “genuine dispute” of fact or law, even if the court 23 ultimately rules against the government. See Pierce, 487 U.S. at 565. The determination of 24 substantial justification is within the discretion of the district court. Pierce v. Underwood, 487 U.S. 25 552 (1988); McDonald v. Sec'y of Health & Hum. Servs., 884 F.2d 1468, 1473 (1st Cir. 1989). 26 27 Pursuant to 28 U.S.C. § 2412(d)(2)(D) ‘“position of the United States’ means, in addition 28 to the position taken by the United States in the civil action, the action or failure to act by the agency 1 upon which the civil action is based . . .’” Thus, the substantial justification standard applies not 2 only to the underlying agency action in denying benefits, but also to the legal and factual positions 3 advanced by the government’s attorneys during the litigation. 4 2. Analysis 5 Plaintiff is indisputably a prevailing party, as she obtained a judgment pursuant to 6 7 stipulation. There is no contention that she is otherwise ineligible under 28 U.S.C. § 2412(d)(2)(B) 8 based on her assets. Substantial justification of the Defendant’s position is not at issue as Defendant 9 did not file an opposition to Plaintiff’s motion for summary judgment nor did Defendant oppose 10 the fee motion. A fee award is therefore appropriate.2 11 B. Fee Amount 12 1. Legal Standard 13 Having determined a fee award is appropriate, the Court must consider the reasonableness 14 15 of the fee request. See 28 U.S.C. § 2412(d)(2)(A). The Court has an “independent obligation for 16 judicial review of the reasonableness of the amount of fees sought under the EAJA regardless of 17 whether the request is opposed.” Douzat v. Saul, 2020 WL 3408706, at *1 (D. Nev. June 11, 2020), 18 citing Lucas v. White, 63 F. Supp. 2d 1046, 1060 (N.D. Cal. 1999). “This obligation is consistent 19 with Ninth Circuit precedent outside the EAJA context that similarly highlights the Court's duty to 20 review the reasonableness of a fee request.” Id, citing Gates v. Deukmejian, 987 F.2d 1392, 1401 21 (9th Cir. 1992) (in addressing request for fees under 42 U.S.C. § 1988, indicating that “the district 22 23 court is required to independently review [a] fee request even absent . . . objections”). 24 Under fee shifting statutes, the movant generally bears the burden of documenting hours 25 and establishing reasonableness of the fee request. See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 26 27 2 In such circumstances, the common practice in this district is for the parties to confer, agree to a reasonable fee amount, and file a stipulation and proposed order for payment of EAJA fees. Despite Defendant filing no objection to 28 the fee motion, no stipulation or proposed order was forthcoming. 1 434 (1983). In addition to the overall fee request, each individual billing entry is also subject to 2 scrutiny. Spegon v. Catholic Bishop, 175 F.3d 544, 552 (7th Cir. 1999). Counsel is entitled to 3 compensation for all work a reasonable and prudent lawyer would undertake to advance her client’s 4 interests. Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 839 (9th Cir. 1982). 5 EAJA hourly rates are capped at $125.00 per hour plus annual cost of living adjustments 6 7 pursuant to the formula set forth in Thangaraja v. Gonzales, 428 F.3d 870, 876–77 (9th Cir. 2005), 8 and published electronically by the Ninth Circuit Court of Appeals. See 9th Cir. R. 39-1.6. The 9 itemized bill filed here reflects that Plaintiff’s counsel performed work in 2021 and 2022. The rate 10 set for 2021 and 2022 was $217.54 per hour and $234.95 per hour, respectively.3 11 2. Analysis 12 Here, counsel performed 48.6 hours of work pursuing this case to judgment. Doc. 24-1 at 13 3. However, “in act of billing discretion” counsel only seeks compensation for 36 hours. Doc. 24 14 15 at 2. 16 “Courts should generally defer to the ‘winning lawyer’s professional judgment as to how 17 much time he was required to spend on the case.’” See Costa v. Comm’r of Soc. Sec. Admin., 690 18 F.3d 1132, 1136 (9th Cir. 2012), quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th 19 Cir. 2008)). District courts often decline to do a line by line review of the fee petition where the 20 overall number of hours expended was reasonable. See, e.g., Allen v. Berryhill, Case No. 17-cv- 21 03384-SI, 2019 WL 343422 (N.D. Cal. January 28, 2019) (70.85 hours); Thompson v. Colvin (E.D. 22 23 Cal., Apr. 17, 2015, No. 2:12-CV-01850-AC) 2015 WL 1767733, at *2 (63.4 hours); Schneider v. 24 Colvin (E.D. Cal., Feb. 9, 2016, No. 1:14-CV-0034-SKO) 2016 WL 500595, at *4 (55.4 hours)). 25 26 27 3 See United States Courts for the Ninth Circuit, Statutory Maximum Rates Under the Equal Access to Justice Act, 28 available at https://www.ca9.uscourts.gov/attorneys/statutory-maximum-rates/ (last visited April 12, 2023). 1 Other courts do conduct line-by-line reviews of fee petitions and deduct time sought for 2 non-compensable work and for certain time entry practices. See e.g., Henderson v. Comm'r of Soc. 3 Sec., No. 1:20-CV-0562 JLT, 2021 WL 2457540, at *3 (E.D. Cal. June 16, 2021) (eliminating time 4 entries for duplicative tasks); Mallard v. Berryhill, No. 1:17-CV-01212 - JLT, 2019 WL 2389506, 5 at *3 (E.D. Cal. June 6, 2019) (same); Neil v. Comm’r of Soc. Sec., 495 F. App’x 845, 847 (9th Cir. 6 7 2012) (unpublished) (affirming reductions for clerical tasks, vague narratives, block billing, and 8 use of quarter-hour billing increments). 9 Here, the overall number of hours sought and the individual billing entries are reasonable. 10 The Certified Administrative Record (CAR) was 3,457 pages in length, which is much longer than 11 average. On the one hand, the majority of the CAR consisted of medical records, and counsel’s 12 motion for summary judgment did not provide much discussion of those medical records. 13 Nevertheless, the Court has no basis to question counsel’s itemization which reflects a significant 14 15 portion of time was spent reviewing the lengthy CAR even though he ultimately determined the 16 medical records were not central to his claims and did not warrant extensive discussion. 17 Additionally, the topics counsel did cover in his motion appear to have been covered with 18 reasonable clarity, depth, and detail, including: 1) the regulatory prohibition on mechanical 19 application of age categories in a borderline age case; 2) unresolved vocational conflicts concerning 20 reasoning level of the jobs identified by the Vocational Expert at step five; 3) unresolved vocational 21 conflicts concerning reaching and noise exposure; and 4) the legitimacy of former Commissioner 22 23 Berryhill’s appointment of the ALJ who presided over Plaintiff’s administrative hearing. 24 Further, the content of counsel’s motion was presumably at least a partial factor in the 25 Commissioner’s decision to stipulate to remand in lieu of filing an opposing brief, thereby saving 26 the parties and the court additional time to brief and adjudicate the motion. On balance, 36 hours 27 appears to be a reasonable time expenditure to pursue this case to judgment. 28 1 As to the individual time entries, there are no glaring issues to warrant deductions such as 2 block billing, quarter hour billing, or billing for purely clerical tasks. Although a few entries may 3 appear to describe some quasi-administrative tasks, any deduction for such entries from the 48.6 4 hour total would be subsumed in counsel’s self-imposed reduction from 48.6 hours to 36 hours. 5 III. Order 6 7 Accordingly, Plaintiff’s motion for attorney fees (Doc. 24) is granted. Fees and costs in an 8 amount of $8,458.44 are awarded in favor of Plaintiff Mary Roseanne Kinney and against 9 Defendant Kililo Kijakazi, Commissioner of Social Security. 10 Fees and costs shall be made payable to Plaintiff. The Department of the Treasury shall 11 determine whether Plaintiff owes a federal debt. If she does not owe a federal debt, and if 12 Plaintiff’s counsel produces an agreement signed by Plaintiff assigning EAJA fees to her 13 attorney, David Chermol,4 then the government shall cause the payment of $8,458.44 in fees and 14 15 costs to be made directly to Plaintiff’s Counsel, David Chermol, Esq., mailed care of the Law 16 Offices of Chermol and Fishman. 17 18 IT IS SO ORDERED. 19 Dated: April 12, 2023 /s/ Gary S. Austin 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 4 The assignment agreement is typically attached to the fee motion, though counsel produced no assignment agreement here, a fact which he appears to acknowledge in his proposed order which states that the fee payment is contingent on 28 him producing an assignment agreement to the SSA.