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Berman v. Colvin

United States District Court, D. Nevada

September 29, 2014

CHERYLIN F. BERMAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

PHILIP M. PRO, District Judge.

Presently before the Court is Plaintiff Cherylin F. Berman's ("Berman") Application for Award of Attorney's Fees Pursuant to 42 U.S.C. § 406(b) and to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (Doc. #20), filed on June 20, 2014.[1] Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), [2] filed an Opposition (Doc. #21) on June 26, 2014. Berman filed a Reply (Doc. #22) on July 10, 2014.

The parties are familiar with the facts of this case, and the Court will not repeat them here except where necessary. Berman filed suit in this Court seeking review of the Commissioner's denial of Berman's request for Social Security disability insurance benefits based on chronic interstitial cystitis and other problems. (Compl. (Doc. #1).) Rather than answering the Complaint, the Commissioner moved to remand, arguing it was unclear whether the administrative law judge had considered certain evidence in the electronic claims file that had not been marked as exhibits. (Not. of Mot. & Mot. to Remand (Doc. #5).) Berman opposed the motion to remand, and subsequently objected to the Magistrate Judge's report and recommendation in which the Magistrate Judge recommended that the case be remanded. (Opp'n to Def.'s Mot. to Remand this Case Pursuant to Sentence Six of 42 U.S.C. § 405(g) (Doc. #6); Objection to Magistrate's Findings & Recommendations (Doc. #9).) The Court overruled Berman's objection and remanded the case to the Commissioner for a de novo hearing before the administrative law judge. (Order (Doc. #11).) On remand, the administrative law judge issued a decision in Berman's favor, and the Court subsequently entered Judgment in Berman's favor. (Order (Doc. #18) at 1; J. (Doc. #19).)

Berman now moves for attorney's fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ("EAJA"), and the Social Security Act, 42 U.S.C. § 406(b). Berman argues she is entitled to attorney's fees under the EAJA in the amount of $10, 716.68, which represents the fee for 58.10 hours of attorney time. Berman further argues she is entitled to attorney's fees under § 406(b) in the amount of $12, 405.48, which represents twenty-five percent of Berman's past-due benefits that she agreed to pay her attorney under a contingency fee agreement. The Commissioner does not dispute that Berman is entitled to attorney's fees under the EAJA, but opposes the amount requested, arguing that the $10, 716.68 request for 58.10 hours of work is unreasonable and that Berman only has satisfied her burden of showing the reasonableness of $1, 597.39 in EAJA fees for 7.6 hours. The Commissioner does not dispute that Berman is entitled to $12, 405.48 in attorney's fees under § 406(b).

The EAJA provides for the award of "fees and other expenses" to a prevailing party in a "civil action" against the United States 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."[3] 28 U.S.C. § 2412(d)(1)(A). The EAJA defines "fees and other expenses" to include "reasonable attorney fees." Id . § 2412(d)(2)(A). Fees and other expenses awarded under the EAJA are paid by the "agency over which the party prevails." Id . § 2412(d)(4).

Section 406(b) provides that the Court may award reasonable attorney's fees, "not in excess of 25 percent of the total of the past-due benefits, " when the Court renders a judgment in favor of a Social Security claimant. Unlike EAJA fee awards, which the government pays, fee awards under § 406(b) are paid directly out of the claimant's past-due benefits. Id . § 406(b)(1)(A). The Court may award attorney's fees under both the EAJA and § 406(b) for the same services, but the claimant's attorney must refund to the claimant the amount of the smaller fee. Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217-19 (9th Cir. 2012). This maximizes the award of past-due benefits to the claimant and avoids giving double compensation to the attorney. Id. at 1218 (citing Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002)).

I. EAJA FEES

To determine a reasonable attorney's fee under the EAJA, the Court applies the "lodestar" method by multiplying the number of hours reasonably expended by a reasonable hourly rate. Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1135 (9th Cir. 2012) (per curiam) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983)) (stating that case law regarding what constitutes a reasonable fee under other federal fee-shifting statutes applies to the EAJA). The lodestar amount is a presumptively reasonable fee. Mendez v. Cnty. of San Bernardino, 540 F.3d 1109, 1129 (9th Cir. 2008). Although presumptively reasonable, the Court may adjust the lodestar based on the Kerr factors[4] "to account for factors not already subsumed within the initial lodestar calculation." Id . The party seeking EAJA fees bears the burden of establishing entitlement to fees and submitting supporting evidence. See Hensley, 461 U.S. at 433. The Court may reduce an award based on inadequate documentation of hours or rates requested. Id . It is within the Court's discretion whether to grant EAJA fees. Costa, 690 F.3d at 1135.

A. Reasonable Hourly Rate

Berman requests an hourly rate of $179.21 for hours her attorney worked in 2011, $182.91 for hours worked in 2012, $185.59 for hours worked in 2013, and $188.87 for hours worked in 2014. After accounting for inflation, these rates are within the adjusted statutory maximum hourly rate set forth in the EAJA. 28 U.S.C. § 2412(d)(2)(A)(ii) (providing that a higher fee than the statutory maximum of $125.00 per hour may be awarded if "the court determines that an increase in the cost of living... justifies a higher fee."); see also Appl. for Award of Attorney's Fees Pursuant to 42 U.S.C. § 406(b) and to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) ["Appl. for Attorney's Fees"] (Doc. #20), Ex. 3 at 6 (setting forth Berman's attorney's hourly rates as adjusted for inflation). Moreover, the Commissioner does not object to the reasonableness of these rates. The Court therefore will set Berman's attorney's rates at these amounts.

B. Reasonable Hours Expended

Berman requests compensation for 58.10[5] hours of attorney work in representing Berman before this Court and the Social Security Administration. Berman contends the hours expended were reasonable, arguing that the time spent opposing the Commissioner's motion to remand was necessary because the Commissioner did not meet the good cause standard, because few cases receive favorable decisions on remand, and because of the delay to the case that would be occasioned by remand.

The Commissioner responds by identifying four categories of hours for which the Commissioner contends Berman should not receive fees. First, the Commissioner objects to all of the fees incurred in 2011 because they are related to the presentation of Berman's case to the Social Security Administration before the Complaint was filed in this case. The Commissioner similarly objects to the portion of the fees incurred in 2012 that are not related to Berman's case before this Court. Second, the Commissioner objects to the fees Berman incurred in opposing the Commissioner's motion to remand and objecting to the Magistrate Judge's report and recommendation, arguing the hours are excessive, redundant, or unnecessary, and therefore are unreasonable under the EAJA. Third, the Commissioner objects to various time entries in which redaction makes the entries' relation to the case unclear. Finally, the Commissioner objects to various time entries following the parties' stipulation to reopen and enter judgment on the grounds it is unclear how these hours are related to this case.

A reasonable number of hours expended means the number of hours an attorney reasonably could have billed to a private client. Costa, 690 F.3d at 1135. If the Court determines some requested fees should be excluded as unreasonable, the Court may exclude billed entries pursuant to an hour-by-hour analysis. Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013). The prevailing party bears the ...


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