Opinion
CV-21-00028-TUC-JAS (LCK)
12-21-2022
Rafael Armando Arvizu, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE.
Plaintiff has filed a timely Petition for Attorney's Fees Pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, requesting $11,939.12. (Doc. 36.) Defendant responded in opposition to the request, and Plaintiff replied. (Docs. 38, 43.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the motion briefing and other docket entries, the Magistrate Judge recommends the District Court, after its independent review, grant the request for attorney's fees without reduction.
Plaintiff's initial motion requested $11,244.65. (Doc. 37 at 9.) In the Reply, counsel added three hours for completing that brief, for a total of $11,939.12. (Doc. 43 at 11.)
DISCUSSION
An administrative law judge (ALJ) denied Plaintiff's request for disability insurance benefits. (Administrative Record "AR" 13-22.) This ruling became Defendant's final decision when the Appeals Council denied review. (AR 1.) Plaintiff then brought an action for review in this Court, pursuant to 42 U.S.C. § 405(g). The Court ruled in favor of Plaintiff and remanded the matter for further proceedings. (Docs. 29, 33, 34.)
Plaintiff's counsel submitted an affidavit and itemization of services for 53.8 hours worked on this case. (Docs. 37-2, 37-3, 43.) Under the EAJA, “a district court's award of attorney's fees must be 'reasonable.' 'The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.'" Sorenson v. Mink, 239 F.3d 1140,1145 (9th Cir. 2001) (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). The Court has "wide latitude in determining the number of hours that were reasonably expended" by the party seeking fees under the EAJA, id. at 1146, and "may credit that party with fewer hours if the time claimed is 'excessive, redundant, or otherwise unnecessary,'" Cunningham v. Cnty. of Los Angeles, 879 F.2d 481, 484 (9th Cir. 1988) (quoting Hensley, 461 U.S. at 434). However, "courts should generally defer to the 'winning lawyer's professional judgment as to how much time he was required to spend on the case.'" Costa v. Comm'r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)).
Defendant opposes the fee request as unreasonable and requests a reduction of 21.5 of the requested hours. First, Defendant argues the issues raised in this case - the evaluation of medical opinions and subjective symptom testimony - are not complex but, rather, the most common issues raised in social security appeals. As discussed below, in evaluating the time spent drafting the opening brief, the Court discounts the pages of boilerplate. Other than the use of previously written standards of law, the essence of this case (as with any social security case) is applying that law to the ALJ's decision in light of the entire administrative record. See Costa, 690 F.3d at 1134 ("We note that the term 'routine' is a bit of a misnomer as social security disability cases are often highly fact-intensive and require careful review of the administrative record, including complex medical evidence.")
Second, Defendant objects to counsel billing 5.5 hours to draft a 10-page Complaint that was unnecessary to state a claim; Defendant requests a 2.5-hour reduction. Further, Defendant contends language from the Complaint was used in the opening brief; therefore, she requests an additional 1-hour reduction. Although an abbreviated complaint may suffice in a social security appeal, that does not make the filing of a more substantive complaint "excessive, redundant, or otherwise unnecessary." As counsel mentions in his fee request, a thorough complaint may aid in early resolution of the case. Additionally, the time spent is not wasted but begins the preparation for a thorough opening brief.
[T]he Social Security Act provides that "[t]he court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security." 42 U.S.C. § 405(g). The existence of this provision demonstrates that a detailed complaint has utility. A relatively small amount of time spent "in the hope of such an outcome is not unreasonable." Latahotchee v. Comm'r of Soc. Sec. Admin., No. CV-19-05668-PHX-DWL, 2021 WL 3089117, at *3 n.2 (D. Ariz. July 22, 2021) (quoting Murrieta v. Comm'r of Soc. Sec. Admin., No. CV-19-04865-PHX-DWL, 2021 WL 1208980, at *3 (D. Ariz. Mar. 31, 2021)).
Third, Defendant contends the opening brief contains lengthy boilerplate. She also argues that less than half of Plaintiff's Reply was spent responding to Defendant's arguments. And Defendant questions, generally, the amount of time counsel spent researching and briefing the issues. She suggests an 8.5-hour reduction for drafting the complaint and briefs. "It must . . . be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee." Moreno, 534 F.3d at 1112. The 23-page opening brief contains approximately 6 pages of boilerplate, and some language from the Complaint, leaving about 16 pages of original writing. (Doc. 22.) Counsel billed 27.6 hours to review the relevant materials and draft the document. It appears approximately 10-11 hours of that was record review, and 17 hours was writing and editing. Digesting even a medium-length social security record is time consuming and not readily done in one pass. Counsel's brief in this case was thorough, it included detailed record citations, and his arguments were on-point. Therefore, the Court finds the amount of time expended reviewing the record and preparing the opening brief was reasonable.
This is a second request to deduct from the 5.5 hours spent preparing the Complaint.
Counsel then spent 11 hours preparing the 10-page Reply. Although it contains a lengthy introduction, it is not filled with boilerplate. It is a detailed discussion of Plaintiff's arguments. Finally, Defendant requested an 8.5-hour reduction as to the filing of three documents without justifying why a specific deduction was warranted as to any specific document. See Alvey v. Comm'r of Soc. Sec. Admin., No. CV-20-08105-PHX-SPL, 2022 WL 375848, at *6 (D. Ariz. Feb. 8, 2022) (noting that a fee opposition must be "specific and 'reasonably precise.'") (citing Am. Civ. Liberties Union of Ga. v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999)).
Fourth, Defendant argues the Court should deduct 11.5 hours for duplicate effort because two counsel participated in reviewing the record materials and preparing filings for the Court. There is nothing improper about one attorney creating an initial draft and the filing attorney revising a document before submission. Latahotchee, 2021 WL 3089117, at *3 (collecting cases) ("the Court has rejected-numerous times-the argument [that] collaboration between two lawyers amounts to impermissible duplication of effort."). Because neither of the attorneys working on the appeal represented Plaintiff in the administrative proceedings, each necessarily had to familiarize himself or herself with the record. See Andreason v. Comm'r of Soc. Sec. Admin., No. CV-18-04102-PHX-DWL, 2020 WL 5544367, at *2 (D. Ariz. Sept. 16, 2020) ("legal collaboration often requires multiple attorneys to review the same documents in order to contribute meaningfully to the drafting and editing process."). The Court has concluded the total amount of time spent reviewing the record and drafting the briefs was reasonable. The time is not excessive or redundant because more than one attorney participated in that process.
Fifth, Defendant argues that administrative tasks are not reimbursable and 1.5 hours-worth of such entries should be deducted from the fee award. Specifically, Defendant cites multiple entries for .1 hours for counsel to review docket entries in the case. Contrary to Defendant's argument that these tasks should be delegated, counsel has an obligation to be aware of filings in the case, even if minor, and to remain apprised of the schedule controlling the case. See Davis v. Comm'r of Soc. Sec. Admin., No. CV-20-01507-PHX-DWL, 2022 WL 2529057, at *3 (D. Ariz. July 7, 2022) ("reviewing Court orders-even very short ones-is not an administrative task"); Meixner v. Comm'r of Soc. Sec. Admin., No. CV-20-00323-TUC-JCH, 2022 WL 17361297, at *3 (D. Ariz. Aug. 18, 2022) (finding that these tasks are not purely administrative).
Finally, Defendant argues that it is difficult to review counsel's bill because of his use of block billing. A few entries contain multiple activities, making it more difficult to ascertain how much time was spent on which tasks. Overall, however, counsel's bill is thorough and well-itemized. The Court was able to evaluate counsel's itemization of services for reasonableness as submitted. Having reviewed the breakdown of time expended, and considering the relevant fee award factors, see Hensley v. Eckerhart, 461 U.S. 424, 430 & n.3, 433-34 (1983), the Court finds counsel's full requested fee reasonable.
RECOMMENDATION
The Magistrate Judge, therefore, recommends that the District Court grant the motion for attorney's fees (Doc. 36) and direct Defendant to pay $11,939.12 in attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). The Magistrate Judge further recommends that, pursuant to the assignment of fees in the Plaintiff's fee agreement, the District Court should direct the government to pay the fee award, minus any offset as explained below, payable to Plaintiff, care of counsel's office. Although fees under the EAJA are awarded to the prevailing party, not to the party's attorney, Astrue v. Ratliff, 560 U.S. 596-98 (2010), the Court should direct Commissioner to determine whether Plaintiff owes a debt to the government and, if the Acting Commissioner of Social Security (1) determines upon effectuation of the Court's Equal Access to Justice Act fee order that Plaintiff does not owe a debt that is subject to offset under the Treasury Offset Program, and (2) agrees to waive the requirements of the AntiAssignment Act, the fees shall be made payable to Plaintiffs attorney, Mark Caldwell.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days.
No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-21-28-TUC-JAS.