IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

TERRY MICHAEL BUZBEE II, 

Plaintiff, 

v. 

CAROLYN W. COLVIN, 

Commissioner of the Social Security 

Administration, 

Defendant. 

MCSHANE, Judge: 

Civ. No. 3:15-cv-00597-MC 

OPINION AND ORDER 

Plaintiff Terry Michael Buzbee II filed a motion (ECF No. 30) for attorney fees in the 

amount of $9,769.86 under the Equal Justice Act ("EAJA"), 28 U.S.C. § 2412(d). The 

Commissioner, in response, opposes this motion, arguing that the number of hours Plaintiffs 

counsel expended on this matter is unreasonable. For the reasons set forth below, Plaintiffs 

petition (ECF No. 30) is GRANTED. 

STANDARD OF REVIEW 

The EAJ A provides that courts "may award reasonable fees and expenses" to the 

prevailing party. 28 U.S.C. § 2412(b ). A plaintiff carries "the burden of establishing entitlement 

to an award and documenting the appropriate hours expended and hourly rates." Hensley v. 

Eckerhart, 461U.S.424, 437 (1982). The Court must determine whether the attorney fees being 

requested are reasonable. Comm 'r, INS., et al. v. Jean, 496 U.S. 154, 158 (1990); 28 U.S.C. § 

2412(d)(l)(A). 

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DISCUSSION 

Whether attorney fees are appropriate under the EAJA is not at dispute in this case, as the 

Commissioner concedes that Plaintiff is the prevailing party and that the Commissioner's 

litigation position was not substantially justified. Instead, the Commissioner argues that this 

Court should reduce Plaintiffs requested award by 40% to $6,513.25 for 34.32 hours of work, 

down from $9,769.86 for 51.48 hours ofwork. 1 The Commissioner argues that this reduction is 

warranted due to the brevity of the administrative record in this case---467 pages-and the 

alleged simplicity of legal issues presented. The Commissioner also highlights counsel's 

extensive experience with this area of law, the fact that this dispute was resolved by stipulation, 

and that counsel conducted unnecessary research. Response, 6, ECF No. 32. 

Under Hensley, hours that are not "reasonably expended" or which are "excessive, 

redundant or otherwise unnecessary" are not compensable. See Hensley, 461 U.S. at 434. 

However, under recent Ninth Circuit jurisprudence that is binding upon this Court, in 

determining what constitutes a reasonable fee award under the EAJA, "courts should generally 

defer to the 'winning lawyer's professional judgment as to how much time he was required to 

spend on the case."' See Costa v. Comm 'r. of Soc. Sec. Admin., 690 F .3d 1132, 1136 (9th Cir. 

2012). Here, the Commissioner provides specific reasons for suggesting a reduction as opposed 

to arguing for a de facto cap. While I commend this approach and find that it is in line with 

Costa, I am not persuaded by these reasons. 

Although I agree that a 467-page administrative record is in the middling range of total 

record lengths that have come before me, this is not a proper basis for finding that Plaintiffs 

counsel has somehow unreasonably inflated time spent on this case. Long records may follow a 

1 I note that the latter hourly total and award sought by Plaintiff in the instant motion reflects a self-imposed 

reduction of 10%, down from 57.2 total hours expended by Plaintiffs counsel on this case. 

2 - OPINION AND ORDER 

Case 3:15-cv-00597-MC Document 34 Filed 05/11/16 Page 2 of 4
.. 

simple case. A complex case may contain a beguilingly brief record. Here, Plaintiff's counsel 

brought six separate arguments in favor ofremand, Pl.'s Brief, 1, ECF No. 15, to which the 

Commissioner ultimately stipulated; Plaintiff suffers or has been diagnosed with an array of 

relevant psychological and mental disorders throughout many years of treatment, Tr. 142; and 

Plaintiff's counsel characterizes this case, using judgment to which I defer, as "incredibly 

complicated." Reply, 2, ECF No. 33; Costa, 690 F.3d at 1136. 

I also dismiss outright the argument that counsel's extensive experience in this area lends 

to the unreasonableness of her billed hours. If anything, counsel's experience bolsters her 

judgment, to which the Ninth Circuit would have me defer. Costa, 690 F.3d at 1136. In that vein, 

Plaintiff's counsel has already exercised her experienced judgment by voluntarily reducing her 

total hours by 10%. Reply, 9, ECF No. 33. 

Additionally, the fact that this dispute was resolved by stipulation does not nullify the 

fact that Plaintiff submitted an extensive and well-researched opening brief on a multi-layered 

case involving a mentally and psychologically disordered claimant. Beyond preventing Plaintiff 

from having to submit a reply brief, stipulation alone is not enough to warrant a reduction in the 

hours Plaintiff requests in his EAJA motion. 

Finally, as to the Commissioner's unnecessary research argument, she posits that "the 

necessity and relevance of some of counsel's research is not established." Response, 5, ECF No. 

32. The Commissioner offers, by way of example, the fact that Plaintiff cites a scientific 

publication regarding cognitive set shifting deficits related to repetitive behavior in individuals 

on the autism spectrum. Id. The Commissioner follows with this: "Plaintiff does not have autism, 

and the relevance of this lengthy article and reasonableness of time spent reviewing it is 

questionable." Id. Where to begin? First, the Commissioner does not list, and likely does not 

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know, the amount of time Plaintiffs counsel spent researching the article in question. Second, 

the article was noted in Plaintiffs opening brief in passing to show that a diagnosis involving 

"cognitive sets" may have had deeper importance than that assigned to it by the ALJ in this case. 

Third, it is not incumbent upon an attorney to ensure that all items within a brief have utility or 

even relevance, it is merely desirable. Fourth, offering supporting academic material assists 

courts in their de novo assessment of complex diagnoses, and it is for the court to decide the 

relevance of such material. Fifth, a scientific article about problems suffered by individuals with 

Autism Spectrum Disorder from inabilities or difficulties shifting cognitive sets provides muchneeded context for a diagnosis in which a physician explains that a claimant has difficulty 

maintaining cognitive sets. Finally, notwithstanding all of this clear logic, I defer to the judgment 

of Plaintiffs counsel in deciding to research the article in question, as well as all other research 

contributing to her success in this case. See Costa, 690 F.3d at 1136. 

CONCLUSION 

Plaintiff's requested EAJA fees of $9,769.86, as well as postage costs of $9.00 and 

photocopying costs of $6.00, are reasonable in light of the foregoing analysis. The Court hereby 

awards attorney fees in the amount of $9,784.86 to Plaintiffs attorney, Nancy J. Meserow 

pursuant to the EAJA. The Commissioner shall direct payment to Nancy J. Meserow, at the Law 

Office of Nancy J. Meserow, 7540 SW 51st Ave., Portland, Oregon, 97219, on behalf of 

Plaintiff. This payment is subject to any offset allowed under the Treasury Offset Program. 

IT IS SO ORDERED. 

DATED this ll_th day of May, 2016. 

4 - OPINION AND ORDER 

\\,.... __ _ 

Michael J. McShane 

United States District Judge 

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