Adams v. Berryhill

[5] 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA [8] Case No.: 19cv335-BLM 9 LLOYD LYNTON ADAMS, 10 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR 11 v. ATTORNEYS’ FEES 12 ANDREW SAUL, Commissioner of the Social [ECF No. 24] Security Administration, [13] Defendant. [15] 16 On December 11, 2019, Plaintiff Lloyd Lynton Adams filed a Motion for Attorneys’ Fees 17 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 . ECF No. 24-1 (“Pl.’s Mot.”). 18 Defendant filed an opposition to the motion on January 17, 2020 [ECF No. 26 (“Def.’s Opp.”)] 19 and Plaintiff filed his reply on January 24, 2020 [ECF No. 27 (“Pl.’s Reply”)]. After reviewing the 20 parties’ submissions, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s motion. 21 BACKGROUND 22 On February 15, 2019, Plaintiff commenced the present action, seeking judicial review of 23 the Commissioner’s denial of his application for Social Security Income and Social Security 24 Disability Insurance benefits. ECF No. 1. On September 11, 2019, the parties filed a Joint 25 Motion for Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405 (g). ECF No. 21. 26 This Court granted the parties’ joint motion and the case was remanded to the Social Security 27 Administration (“SSA”). ECF No 23. While the parties agree that Plaintiff is entitled to reasonable attorneys’ fees, they 1 disagree as to the amount of fees that are reasonable. Initially, Plaintiff requested fees totaling 2 $24,019.80 for 117.6 hours expended in litigation before the District Court. Pl.’s Mot. at 6. 3 Defendant opposed this request on the ground that it was unreasonable and asserted “that this 4 Court should award no more than $8,578.50 in EAJA fees.” Def.’s Opp. at 2, 6. In his reply, 5 Plaintiff amended his request stating that, while “Plaintiff’s counsel rejects the Commissioner’s 6 assertions that the hours expended were unreasonable,” Plaintiff is willing to reduce the number 7 of requested hours from 117.6 to 69.3 hours. See Pl.’s Reply at 1-2 (Plaintiff requests 60 hours 8 for the original complaint and motion for summary judgment filed before this Court as well as 9 9.3 hours for the preparation of the EAJA motion and reply brief). 10 DISCUSSION 11 An award of attorneys’ fees under the EAJA must be reasonable. 28 U.S.C. 12 § 2412(d)(2)(A). “The most useful starting point for determining the amount of a reasonable 13 fee is the number of hours reasonably expended on the litigation multiplied by a reasonable 14 hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); see Atkins v. Apfel, 154 F.3d 986 , 15 988 (9th Cir.1998) (stating that the district court should apply the same standard established in 16 Hensley to determine whether a request for attorneys’ fees under the EAJA is reasonable). “The 17 district court has a great deal of discretion in determining the reasonableness of” attorneys’ fees, 18 including “the reasonableness of the hours claimed by the prevailing party.” Gates v. 19 Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992) (citations omitted). If the court awards 20 attorneys’ fees, it must “provide a concise but clear explanation of its reasons for the fee award.” 21 Hensley, 461 U.S. at 437 . The party seeking attorneys’ fees bears the burden of demonstrating 22 that the requested fees are reasonable. Id. at 434 . 23 A. Applicable Rate 24 The EAJA states that awarded fees “shall be based upon prevailing market rates for the 25 kind and quality of the services furnished[.]” 28 U.S.C. § 2412 (d)(2)(A). However, a court may 26 not award attorneys’ fees in excess of $125 per hour absent a determination that higher fees [27] 1 are justified due to an increase in cost of living or that a special factor1 applies. Id. The Ninth 2 Circuit provides a list of the applicable statutory maximum hourly rates, adjusted for increases 3 in the cost of living, under the EAJA.2 4 As an exhibit to his initial motion, Plaintiff filed a printout of the Ninth Circuit’s website 5 listing of the EAJA rates. See ECF No. 24-4. At the time that Plaintiff visited the website, which 6 was on October 18, 2019, the listed rate was $204.25 for the first half of 2019. Id. Defendant 7 refers to this rate in his opposition and uses it to calculate the total amount owed to Plaintiff in 8 attorneys’ fees. Def.’s Opp. at 6. The Ninth Circuit updated this rate and the current rate for 9 2019 is $205.25. See EAJA Rates. In his reply, Plaintiff uses this newly listed rate to calculate 10 the total amount of attorneys’ fees owed to his counsel. See Pl.’s Reply at 8. The Court finds 11 the Ninth Circuit’s 2019 EAJA hourly rate of $205.25 to be reasonable and applies it to the 12 requested fees. 13 B. Billed Hours 14 A plaintiff may recover attorneys’ fees under the EAJA for hours “reasonably expended 15 on the litigation.” Hensley, 461 U.S. at 433 . “Where a plaintiff has obtained excellent results, 16 his attorney should recover a fully compensatory fee.” Id. at 435 . “‘Hours that are not properly 17 billed to one’s client also are not properly billed to one’s adversary pursuant to statutory 18 authority.’” Id. at 434 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980) (en 19 banc)) (emphasis in original). Hours that are excessive, redundant, or otherwise unnecessary 20 should be excluded. Id. 21 The Ninth Circuit has held that it is “an abuse of discretion to apply a de facto policy 22 limiting social security claimants to twenty to forty hours of attorney time in ‘routine’ cases.” 23 Costa v. Comm. of Soc. Sec. Admin., 690 F.3d 1132, 1137 (9th Cir. 2012). Instead, courts [25] 1 An example of a special factor is the “limited availability of qualified attorneys for the [26] proceedings involved.” Id. 27 2 See Statutory Maximum Rate Under the Equal Access to Justice Act, U.S. Cts. for the Ninth Circuit, https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000039 (last visited 1 should consider factors such as the complexity of legal issues, the procedural history, the size 2 of the record, and when counsel was retained for each case. Id. 3 In the instant case, Plaintiff seeks to recover fees for 60 hours of work performed to 4 successfully litigate this case – 5 hours to draft the complaint, 20 hours to review the 5 administrative record (“AR”), and 35 hours to prepare the MSJ. Pl.’s Reply at 2, 6-8. Plaintiff 6 also seeks to recover fees for 4.5 hours spent preparing the motion for attorneys’ fees and 4.8 7 hours preparing the reply. Id. at 2, 8. Defendant argues that the fees are unreasonable and 8 should be reduced because the hours billed for the work performed are excessive, duplicative, 9 and unwarranted. See Def.’s Opp. [10] 11 Plaintiff’s counsel, Attorney Tamra Lett, Attorney Nichole Mendoza, and Attorney James 12 Zhang collectively billed 10.2 hours3 to draft and file the complaint. See ECF No. 24-3 (“Pl.’s 13 Hrs”) at 1-2. Of these, 2.8 hours were spent by Attorney Zhang to draft the initial document 14 and 4.9 hours were spent by Attorneys Lett and Mendoza to edit the complaint, prepare it for 15 filing, and submit it to the Court. Id. Though Plaintiff agreed to reduce the total claimed hours 16 for the complaint by 5.2 hours, the Court finds that the requested 5.0 hours to draft and file the 17 complaint still is unreasonable. 18 The complaint in this case is seven pages long and asserts a single cause of action. ECF 19 No. 1. Five of the seven pages set forth basic jurisdictional, procedural, and legal statements. 20 Id. at 1-3, 6-7. The remaining two plus pages summarize facts and conclusions from the ALJ’s 21 decision. Id. at 4-6. The complaint describes a simple procedural history and does not contain 22 any legal analysis or description of a complex legal issue. Id. at 1-7. As such, it was 23 unreasonable for Plaintiff’s counsel to spend 10 or even 5 hours drafting it. Given the lack of 24 complexity, the Court finds that two hours is a reasonable amount of time to prepare and file [26] 3 Of the 10.2 hours, Attorney Lett billed 3 hours (1.00 hours on February 13, 2019 and 2.00 27 hours on February 15, 2019), Attorney Mendoza billed 4.2 hours (1.3 hours on February 6, 2019 and 2.9 hours on February 8, 2019), and Attorney Zhang billed 3 hours on February 13, 1 the complaint in this case. See Tam Phan Nguyen v. Berryhill, No. 17CV1406-MMA-NLS, 2018 2 WL 6504150 , at *4 (S.D. Cal. Dec. 11, 2018) (allowing 3 hours to be billed for preparing and 3 drafting the complaint where the attorney thoroughly researched case law regarding the 4 plaintiff’s case); see Kirk v. Berryhill, 244 F. Supp. 3d 1077, 1084 (E.D. Cal. 2017) (allowing 1 5 hour to be billed for preparing documents for representation, drafting and filing the complaint, 6 and filing consent to proceed before a magistrate judge); see Duarte v. Aetna Life Ins. Co., No. 7 8:15-CV-594-JLS-RNBX, 2016 WL 11505593 , at *5 (C.D. Cal. Sept. 29, 2016) (allowing 1.3 hours 8 to be billed for drafting and editing the complaint). [9] 10 Attorney Zhang spent 37.3 hours4 to review and “breakdown” the AR in preparation for 11 the motion for summary judgment (“MSJ”). Pl.’s Hrs at 3-5. To support the request for so many 12 hours, Plaintiff submitted Attorney Zhang’s 23-page list of “the pertinent facts of every page of 13 the record, with a detailed breakdown of every objective medical finding in the medical 14 records[.]” See ECF No. 27-3 (“Exhibit C”). In the first 10 pages, Attorney Zhang copied and 15 pasted statements from the ALJ’s Notice of Unfavorable Decision that was sent to Plaintiff. Id. 16 at 2-11. Attorney Zhang then devoted the next 6 pages to summarizing the transcripts of the 17 ALJ hearings held on August 29, 2017 and September 8, 2014. Id. at 11-17 . Finally, the 18 remaining 7.5 pages of the list consisted of brief summaries of Plaintiff’s medical records 19 beginning on page 568 and ending on page 891 of the AR. Id. at 17-24 . Plaintiff argues in his 20 moving papers that the claimed hours are “reasonable given the size of the administrative record 21 and the complexity of the litigation in district court.” Pl.’s Mot. at 5. 22 Defendant argues that the amount of time spent reviewing the AR was unreasonable 23 because the same lawyer represented Plaintiff at the administrative hearing and in the litigation 24 before this Court and because much of the review was done after Plaintiff filed his MSJ. Def.’s [26] 4 Of these hours, Attorney Zhang billed 4.9 hours on May 28, 2019, 5.1 hours on May 30, 27 2019, 4.4 hours on May 31, 2019, 4.7 hours on June 13, 2019, 3 hours on June 21, 2019, 4.1 hours on July 3, 2019, 3.8 hours on July 10, 2019, 2.9 hours on July 15, 2019, 2.5 hours on 1 Opp. at 4. Plaintiff responds to the first argument by asserting that Attorney Zhang, who 2 reviewed the AR, did not represent Plaintiff during the administrative hearing. Pl.’s Reply at 53 6. While Mr. Zhang did not represent Plaintiff during the administrative hearings, his law firm, 4 Legal Aid Society of San Diego, Inc. (“LASSDI”), did. AR at 43-45, 100-102. Plaintiff has not 5 stated which LASSDI attorneys worked on Plaintiff’s case during the administrative proceedings 6 (see Pl.’s Mot. and Pl.’s Reply) but the AR indicates that LASSDI represented Plaintiff beginning 7 in at least 2013, at both administrative hearings, and at the time the ALJ decisions were issued 8 and challenged. AR at 40, 42-45, 100-02, 207, 210, 237, 295, 301. In addition, the AR indicates 9 that attorney Nicole Mendoza was appointed to represent Plaintiff on September 8, 2014, 10 represented Plaintiff during the 2014 administrative hearing, received correspondence through 11 2016, and was reappointed on December 19, 2017. Id. at 40, 100-102, 210, 231-32, 295, 323 . 12 Attorney Mendoza was one of the names listed on Plaintiff’s complaint in this matter and Bridget 13 Homer identifies Nicole Mendoza as “Lead Attorney.” ECF Nos. 1, 24-2 at 2. Given the extensive 14 representation by LASSDI and by Ms. Mendoza, the Court finds that Plaintiff’s argument that Mr. 15 Zhang needed extended time to review the AR because he was unfamiliar with the case to be 16 without merit. As members of the same firm, Ms. Mendoza should have provided guidance to 17 Mr. Zhang regarding the relevant legal issues and factual support, should have directed him to 18 the relevant doctors and portions of the AR, and should have instructed him to provide a 19 summary tailored to the case and issues rather than an overly detailed summary of the AR. As 20 such, the Court finds the hours expended by Mr. Zhang to review the AR to be excessive, 21 duplicative and unreasonable. 22 Plaintiff does not address Defendant’s second argument that the 18.2 hours expended by 23 Attorney Zhang to “breakdown” the AR after the MSJ was filed was unreasonable. See Pl.’s 24 Reply. While it is not unreasonable for a party to begin to prepare to address an opposition 25 before the opposition is filed, the Court finds that it was unreasonable for Attorney Zhang to 26 spend 18 hours “breaking down” the AR, especially since he already spent 19 hours reviewing 27 the AR. The Court finds that the level of detail and scope of review contained in Mr. Zhang’s 1 light of the MSJ that was filed. 2 Plaintiff contends that the requested hours are reasonable based on the Ninth Circuit’s 3 holding in Kirk v. Berryhill, 244 F.Supp.3d at 1082-83 . The court in Kirk held that 39.1 hours 4 were reasonable for the preparation of an MSJ due to the length of the AR (1071 pages) and 5 the MSJ (40 pages). Id. at 1083 . The court stated that while counsel billed more hours than is 6 “typically expended in social security cases,” this was reasonable due to the fact that “counsel 7 did not represent plaintiff at the administrative level and had to become familiar with the case.” [8] Id. Here, in addition to the fact that there was continuity of counsel, this case is distinguishable 9 because Plaintiff’s counsel spent 37.3 hours reviewing the administrative record and another 52 10 hours preparing the MSJ. Pl.’s Hours 3-5. In contrast, the Kirk administrative record was over 11 100 pages longer than in Plaintiff’s case, the MSJ was 10 pages longer, and the 39.1 hours 12 requested by counsel included the time it took to review the AR and draft the MSJ. Kirk, 244 13 F.Supp.3d at 1082. 14 A court has an independent duty to review the evidence to determine the reasonableness 15 of the hours requested in each case. Hensley, 461 U.S. at 433, 436-47 . For the reasons set 16 forth above, the Court finds that the 37 hours expended by Mr. Zhang, as well as the 20 hours 17 suggested by Plaintiff in his reply, are unreasonable to review the AR in this case. Mr. Zhang 18 and LASSDI were not efficient and effective in the review of the AR and the Court declines to 19 order Defendant to pay for the decision to have a less experienced attorney review the record 20 without any guidance from the firm’s attorneys who knew the facts and law of this case, as well 21 as general social security litigation. The Court finds that a reasonable amount of time to review 22 the AR in this case is 15 hours. [23] 24 Attorneys Mendoza and Zhang collectively billed 52.2 hours for drafting, reviewing, and 25 revising the MSJ. Pl.’s Hours at 2, 4. Attorney Zhang spent 35.6 hours drafting the majority of 26 the MSJ, while Attorney Mendoza billed 16.6 hours to pare down Attorney Zhang’s draft from 38 27 pages to 25 and complete the table of contents and table of authorities. Id. at 2-4. Attorney 1 and meeting with Attorney Mendoza to discuss deadlines and edits. Id. at 3-4. In total, 11 2 pages of the 25-page MSJ submitted by Plaintiff consist of the introduction, procedural history, 3 summary of the ALJ findings and administrative record, standard of review, and conclusion. See 4 Plaintiff’s Motion for Summary Judgment (“Pl.’s MSJ”) ECF No. 14 at 6-16, 30. The remaining 5 14 pages contain Plaintiff’s three legal arguments: 1) the ALJ erred by crafting a Residual 6 Functional Capacity that is not supported by substantial evidence; 2) the ALJ improperly 7 discredited the opinions of Plaintiff’s treating physician; and 3) the ALJ erred when he failed to 8 find that Plaintiff’s impairments equaled Listing 11.02 (Epilepsy). See Pl.’s MSJ. These three 9 legal arguments are neither complex nor unique. On the other hand, Plaintiff’s motion was 10 extremely successful as it resulted in Defendant agreeing to remand the case for further 11 consideration by an ALJ. See Hensley, 416 U.S. at 434 (stating that the district court may adjust 12 a fee award upward or downward based on the “results obtained”); see Gould v. Berryhill, No. 13 07-CV-1039-LAB-WMC, 2017 WL 3020928 , at *2 (S.D. Cal. July 17, 2017) (granting a fee award 14 for hours billed by counsel for review of the record and preparation of the successful MSJ which 15 resulted in the case being remanded by the Commissioner) 16 Defendant asserts that Plaintiff should be limited to 30 hours for preparation of the MSJ 17 and that the amount of time actually spent by Plaintiff’s counsel was unreasonable. Def.’s Opp. 18 at 5. In his reply, Plaintiff asserts that the actual time spent by counsel was reasonable but 19 agrees to reduce his request to 35 hours. Pl.’s Reply at 7-8. After reviewing the MSJ filed by 20 Plaintiff and considering the number and complexity of the issues, the size of the record as well 21 the medical issues contained therein, and the success of the motion, the Court agrees with 22 Plaintiff’s reduced request and finds that 35 hours to draft the MSJ was reasonable5. See [23] 24 5 While the Court is approving the requested time, the Court is concerned that Attorney Mendoza billed in her time in “block-billing format” as there is a single entry for 16.6 hours on 25 June 17, 2019. Pl.’s Hours at 2. A court may reduce a fee award to a reasonable amount when an attorney submits billing entries in “blocks” and the “documentation of hours is [26] inadequate.” Hensley, 416 U.S. at 433; see Fischer v. SJB-P.D. Inc., 214 F.3d 1115, 1121 (9th 27 Cir. 2000) (stating that while counsel is not required to record in detail each minute of her time expended, she just barely meets her burden by “simply listing her hours” and identifying 1 Moreno v. City of Sacramento, 534 F.3d 1106, 1115 (9th Cir. 2008) (a court’s “inquiry must be 2 limited to determining whether the fees requested by this particular legal team are justified for 3 the particular work performed and the results achieved in this particular case.”); see also 4 Hensley, 416 U.S. at 435 (“Where a plaintiff has obtained excellent results, his attorney should 5 recover a fully compensatory fee.”). [6] 7 Plaintiff requests 4.5 hours for the time spent on the EAJA motion and an additional 4.8 8 hours for time spent on the reply to Defendant’s opposition to the motion. Pl.’s Reply at 8. 9 Defendant does not assert any arguments against Plaintiff’s billing entries for drafting of the 10 EAJA motion. See Def.’s Opp. Reasonable time spent in preparing an EAJA fee motion is 11 compensable. Atkins, 154 F.3d at 989 . Pursuant to the Southern District’s Civil Local Rules, 12 counsel must support their requested fees with an itemized list of the costs claimed and must 13 also file “an affidavit of counsel that the costs claimed are allowable by law, are correctly stated, 14 and were necessarily incurred.” Civil L. R. 54.1(a). Though Plaintiff filed an itemized list of 15 requested hours and a sworn declaration by Attorney Bridget Homer with his initial EAJA motion, 16 he failed to submit a sworn declaration with his reply brief. See Pl.’s Reply. Accordingly, Plaintiff 17 cannot recover fees incurred in connection with the reply brief. See Jimenez v. Colvin, No. 1518 CV-1111-DMS-MDD, slip op. at 10 (S.D. Cal. Nov. 28, 2016) (denying the plaintiff fees in 19 connection with the reply brief for failure to support the requested fees with a sworn declaration 20 as required by the Southern District’s Civil Local Rules); see also Johnson v. FCA US LLC, No. 21 3:17-CV-0536-AJB-BGS, 2019 WL 3891148 , at *5 (S.D. Cal. Aug. 19, 2019) (reducing an award 22 of fees for failure to follow procedures outlined in Local Rule 54.1(a)). Accordingly, the Court 23 approves the requested 4.5 hours for filing the EAJA motion and no time for the reply. [26] Co., 480 F.3d 942, 948 (9th Cir. 2007) (“We do not quarrel with the district court’s authority to 27 reduce hours that are billed in block format.”). Because the Court finds that the reduced request of 35 hours is reasonable, the Court is not addressing counsel’s block-billing but 1 CONCLUSION 2 For the reasons discussed above, the Court GRANTS IN PART and DENIES IN PART 3 || Plaintiff's motion for attorneys’ fees. The Court finds Plaintiff's counsel reasonably expended 4 ||56.5 hours in compensable work, consisting of 2 hours for the complaint, 15 hours for review of 5 AR, 35 hours for the MSJ, and 4.5 hours for the EAJA motion. At the authorized rate of 6 $205.25 per hour, Plaintiff's reasonable attorneys’ fees total $11,596.63. Defendant is ordered 7 || to pay Plaintiff $11,596.63 in EAJA fees. 8 IT 1S SO ORDERED. 9 Dated: 3/20/2020 x, be Mg oe 10 Hon. Barbara L. Major 1 United States Maaistrate Judae