1 – OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MEGAN ELIZABETH ALTORFER,

No. 3:14-cv-01933-HZ

Plaintiff,

OPINION & ORDER

v.

COMISSIONER, SOCIAL SECURITY

ADMINISTRATION

Defendant.

Max Rae 

P.O. Box 7790 

Salem, OR 97303

Attorney for Plaintiff

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Case 3:14-cv-01933-HZ Document 29 Filed 04/26/16 Page 1 of 6
2 – OPINION & ORDER

Billy J. Williams

United States Attorney

District of Oregon

Janice E. Hebert

Assistant United States Attorney

1000 SW Third Ave., Ste. 600

Portland, OR 97204

Lisa Goldoftas

Special Assistant United States Attorney

Office of the General Counsel 

Social Security Administration 

701 Fifth Ave., Ste. 2900 M/S 221A

Seattle, WA 98104

Attorneys for Defendants

HERNÁNDEZ, District Judge:

Plaintiff Megan Elizabeth Altorfer was the prevailing party in an Order issued by this 

Court, reversing and remanding the Defendant Commissioner’s decision to deny Social Security 

benefits. She now moves for attorney’s fees pursuant to the Equal Access to Justice Act

(“EAJA”). Defendant objects to the motion, arguing that Plaintiff’s request is unreasonable and 

that Plaintiff’s fees should be further reduced because of Plaintiff’s counsel’s billing practices. 

The Court disagrees, and grants Plaintiff’s motion. 

STANDARDS

For a court to award attorney’s fees pursuant to the EAJA, 1) the plaintiff must be the 

prevailing party; 2) the government must not have met its burden showing that its positions were

substantially justified or that special circumstances make the award unjust; and 3) the requested 

attorney’s fees must be reasonable. Perez-Arrellano v. Smith, 279 F.3d 791, 793 (9th Cir. 2002) 

(citing 28 U.S.C. § 2412(d)(1)(A)). 

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3 – OPINION & ORDER

DISCUSSION

On December 18, 2015, this Court issued a Judgment reversing and remanding an 

Administrative Law Judge’s (“ALJ”) decision not to award Plaintiff benefits. As the prevailing 

party, Plaintiff requests EAJA fees in the amount of $10,127.36 for 53.39 hours of work. Pl.’s 

Mot. for Att’y Fees at 4, 5, ECF No. 25. Defendant contends that Plaintiff’s fee request is 

unreasonable in the total number of hours expended, and further argues that Plaintiff’s fees 

should be reduced because Plaintiff’s counsel engaged in block billing and used an 

unstandardized method to track time. Def.’s Obj. at 2–3, 7–9, ECF No. 27.

An award of attorney’s fees under EAJA must be reasonable. 28 U.S.C. § 2412(d)(2)(A). 

A district court has an independent duty to review the fee request to determine its 

reasonableness. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Moreno v. City of Sacramento, 

534 F.3d 1106, 1111 (9th Cir. 2008); Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). 

In deciding fee petitions, a court must determine the reasonable number of hours expended by 

counsel, and the reasonable hourly rate of that counsel. Hensley, 461 U.S. at 434. The fee 

applicant bears the burden of documenting the appropriate hours expended and must submit 

evidence in support of those hours worked. Gates, 987 F.2d at 1397. The opposing party then has 

the burden of rebuttal which requires submission of evidence to challenge the accuracy and 

reasonableness of the hours charged. Id. at 1397–98. Where documentation is inadequate, the 

court may reduce the requested award. Hensley, 461 U.S. at 433–34. 

First, Defendant asserts that Plaintiff spent an unreasonably large amount of time 

working on the case. Defendant cites Costa v. Commissioner of Social Security Administration,

for the proposition that courts must consider four factors when determining how much time an 

attorney can reasonably spend on a case. 690 F.3d 1132, 1136 (9th Cir. 2012). In Costa, the 

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4 – OPINION & ORDER

Ninth Circuit held that a district court’s decision to reduce the prevailing plaintiff’s award of 

attorney’s fees by twenty hours, or nearly one-third of the total reported hours, was an abuse of 

discretion. Id. at 1135. The Oregon district court held that the reported average was 20 to 40 

hours in “routine” Social Security cases, and that plaintiff-counsel’s report of sixty hours was 

well over the average and, thus, unreasonable. Id. at 1134. The Ninth Circuit reasoned that the 

district court’s failure to give further explanation was an abuse of discretion because a reasonable 

amount of time “will always depend on case-specific factors including, among others, the 

complexity of the legal issues, the procedural history, the size of the record, and when counsel 

was retained.” Id. 1136. (emphasis added). The Ninth Circuit also rejected the “informal districtwide” forty hour limit that the district court had referred to. Id. at 1137.

These factors listed in Costa are not concrete, absolute statements of the law—they are, 

instead, a handful of guiding factors. That being said, in assessing this case in light of those 

factors, the Court disagrees with Defendant. Though the procedural history was standard Social 

Security fare, and the record was not of any significant length, the case was factually dense. For 

example, while an argument regarding a plaintiff’s credibility is common, in this case, the ALJ 

provided six independent reasons in support of the negative credibility determination. For 

Plaintiff to convince the Court that the ALJ erred on this issue, Plaintiff had to convincingly 

address each of those six reasons. Plaintiff’s opening brief and reply were both necessarily of 

considerable length, considering the various issues in the case. Plaintiff’s counsel raised as many 

arguments as possible in his opening brief, and the fact that the Court did not individually 

address each of those arguments is not conclusive that the time spent drafting the brief was 

unreasonable. Furthermore, the fact that it took Plaintiff’s counsel more than forty hours to work 

on the entire, fact-rich case, was not unreasonable. 

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5 – OPINION & ORDER

Second, Defendant argues that Plaintiff’s fees should be reduced because Plaintiff 

engaged in block billing and unstandardized time-keeping. Def.’s Obj. at 2–3, 7–9. Defendant 

contends that the majority of Plaintiff’s time entries consist of the phrase “[p]repare Plaintiff’s 

Opening Brief,” and that this is too vague a description of the completed tasks. Id. at 7. However, 

the Court notes that Plaintiff’s descriptions of drafting a brief could not have been any more 

detailed. The Ninth Circuit defines block billing as “the time-keeping method by which each 

lawyer and legal assistant enters the total daily time spent working on a case, rather than 

itemizing the time expended on specific tasks.” Welch v. Metro. Life Ins. Co., 480 F.3d 942, 945 

n.2 (9th Cir. 2007). In Social Security appeals, because the fact-finding has been conducted at 

the administrative level, there is a limited range of tasks to be completed when the matter reaches 

a district court. Those tasks include reviewing the record and conducting legal research, which 

are part and parcel of drafting opening and reply memoranda. There is no indication that 

Plaintiff’s counsel spent time doing any other task which could be delineated, and Defendant 

provides no further evidence to rebut this. Alternatively, given the limited range of tasks 

performed at this stage, even if the failure of a plaintiff’s Social Security attorney to segregate 

time spent on record review and research from actually drafting a brief is considered block 

billing, the Court exercises its discretion to award Plaintiff all the requested time. 

The Court also cannot see how Plaintiff’s counsel’s time-keeping method is problematic. 

Plaintiff’s counsel uses an electronic timer to keep track of time spent on a task, and his time was 

recorded down to the hundredths of an hour. Pl.’s Reply at 2, ECF No. 28. Defendant cites Neil 

v. Commissioner of Social Security for the idea that time keeping methods that do not count 

tenths of an hour merit a fee reduction. 495 F. App’x 845, 847 (9th Cir. 2012). In Neil, the 

disputed time-keeping method was for quarter hour billing. (“the district court’s deduction of ten 

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6 – OPINION & ORDER

(10) percent from time spent preparing the opening brief for . . . . use of quarter hour billing 

increments was not an abuse of discretion”). Understandably, billing in quarter hours often 

increases the likelihood of counsel rounding up in order to complete an increment. As Plaintiff’s 

counsel notes, his actual time spent is more accurate and reduces the need for rounding.

Consequently, the Court rejects Defendant’s argument and will not reduce Plaintiff’s requested 

fees because of counsel’s time-keeping methods. 

CONCLUSION

For the reasons stated, Plaintiff’s motion for EAJA fees [25] is GRANTED. Plaintiff is 

awarded $10,127.36 in fees. 

IT IS SO ORDERED.

Dated this __________ day of ______________________________, 2016.

 

MARCO A. HERNÁNDEZ

United States District Judge

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