IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LISA LEWIS, 3:15-CV-02307-BR

Plaintiff, OPINION AND ORDER

v.

NANCY A. BERRYHILL,1

Acting Commissioner, Social

Security Administration,

Defendant.

NANCY J. MERSEROW

7540 S.W. 51st Avenue

Portland, OR 97219

(503) 560-6788 

Attorney for Plaintiff

BILLY J. WILLIAMS

United States Attorney

JANICE E. HEBERT 

Assistant United States Attorney

1000 S.W. Third Avenue, Suite 600

Portland, OR 97204-2902

(503) 727-1003

1 Pursuant to Federal Rule of Civil Procedure 25(d), Nancy

A. Berryhill, who became Acting Commissioner of the Social

Security Administration on January 23, 2017, is automatically

substituted in place of Carolyn W. Colvin.

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DAVID MORADO

Regional Chief Counsel

GERALD J. HILL 

Special Assistant United States Attorney

Social Security Administration

701 5th Avenue, Suite 2900, M/S 221A

Seattle, WA 98104

(206) 615-2139 

Attorneys for Defendant

BROWN, Judge.

This matter comes before the Court on Plaintiff’s Motion

(#19) for Attorney Fees in addition to $19.00 in costs and

expenses. On January 19, 2017, the Court issued an Opinion and

Order (#17) in which it found the Administrative Law Judge (ALJ)

erred when he failed to address the opinion of Plaintiff’s

treating psychologist, Neal Musselman, D.O. The Court, however,

affirmed the ALJ’s decision in other respects. Accordingly, the

Court reversed the ALJ’s decision and remanded this matter to the

Commissioner to address Dr. Musselman’s opinion and to reassess

Plaintiff’s residual functional capacity in light of 

Dr. Musselman’s opinion. The Court also entered a 

Judgment (#18) on January 19, 2017.

On February 16, 2017, Plaintiff filed her Motion (#19) for

Attorney Fees in which Plaintiff seeks $10,428.24 in attorneys’

fees and $19.00 in costs and expenses. Defendant opposes

Plaintiff’s Motion on the bases that (1) Defendant’s position

with respect to Dr. Musselman’s opinion was substantially

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justified and (2) Plaintiff’s requested fee award is

unreasonable.

I. Standards

A. Award of Attorneys’ Fees Under EAJA

Under the Equal Access to Justice Act (EAJA), 28 U.S.C. 

§ 2412, the Court may award attorneys’ fees and costs to a

plaintiff’s attorney in an action against the United States or

any agency or official of the United States if 

(1) the plaintiff is the prevailing party, (2) the

government has not met its burden to show that its

positions were substantially justified or that special

circumstances make an award unjust, and (3) the

requested attorney’s fees and costs are reasonable. 

28 U.S.C. § 2412(d)(1)(A). See also Perez-Arellano v. Smith, 279

F.3d 791, 792 (9th Cir. 2002). 

A “prevailing party” is one who has been awarded relief by

the court on the merits of at least some of his claims. Hanrahan

v. Hampton, 446 U.S. 754, 758 (1980). “Enforceable judgments and

court-ordered consent decrees create ‘the material alteration of

the legal relationship of the parties’ necessary to permit an

award of attorney’s fees.” Buckhannon Bd. and Care Home, Inc. v.

W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 604

(2001)(internal citation omitted). 

A prevailing plaintiff is not entitled to attorneys’ fees

under EAJA when the Commissioner’s positions were substantially

justified. Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir.

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2002). The Commissioner’s positions are substantially justified

if they are reasonably based in both law and fact. Id. (citing

Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)). The

Commissioner’s failure to prevail on the merits of his positions

does not raise a presumption of unreasonableness. U.S. v.

Marolf, 277 F.3d 1156, 1162 (9th Cir. 2002)(citing Kali v. Bowen,

854 F.2d 329, 332 (9th Cir. 1988)).

B. Calculating the Amount of Attorneys’ Fees

Under EAJA the hourly rate for attorneys’ fees is capped at

$125.00, but the statute allows the Court to make adjustments for

cost of living or other appropriate “special factor[s].” 28

U.S.C. § 2412(d)(2)(A). If the government acts in bad faith,

however, fees may be awarded at the market rate rather than at

the EAJA-mandated rate. 28 U.S.C. §§ 2412(b), (c). See also

Brown v. Sullivan, 916 F.2d 492, 497 (9th Cir. 1990)(“The

district court may award attorney fees at market rates for the

entire course of litigation . . . if it finds that the fees

incurred during the various phases of litigation are in some way

traceable to the Secretary’s bad faith.”). The “bad faith

exception is ‘a narrow one,’ typically invoked in cases of

‘vexatious, wanton, or oppressive conduct.’” Id. at 495 (quoting

Barry v. Bowen, 825 F.2d 1324, 1334 (9th Cir. 1987), and citing

F.D. Rich Co. v. United States ex rel. Indus. Lumber Co., 417

U.S. 116 (1979)). The bad-faith exception “is punitive, and the

4 - OPINION AND ORDER
penalty can be imposed ‘only in exceptional cases and for

dominating reasons of justice.’” Beaudry Motor Co. v. Abko Prop.

Inc., 780 F.2d 751, 756 (9th Cir. 1986)(quoting United States v.

Standard Oil Co., 603 F.2d 100, 103 (9th Cir. 1979)).

The court may reduce an award of attorneys’ fees under EAJA

when the plaintiff’s requested fees are unreasonable. Costa v.

Comm’r of Soc. Sec. Admin., No. 11-35245, 2012 WL 3631255, at *2

(9th Cir. Aug. 24, 2012)(citing 28 U.S.C. §§ 2412(d)(1)(A),

2412(d)(2)(A)). The court applies the “lodestar” method set

forth in Hensley v. Eckerhart to determine whether a fee award is

reasonable. Id. (citing 461 U.S. 424, 433 (1983)). See also

Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990)(Under EAJA “the

district court’s task of determining what fee is reasonable is

essentially the same as that described in Hensley.”). 

To calculate the “lodestar” amount the court multiplies “the

number of hours reasonably expended on the litigation . . . by a

reasonable hourly rate.” Costa, 2012 WL 3631255, at *2 (quoting

Hensley, 461 U.S. at 433). To calculate the number of hours

reasonably expended the court considers “whether, in light of the

circumstances, the time could reasonably have been billed to a

private client.” Hensley, 461 U.S. at 433. 

A court may not apply de facto caps on the number of hours

for which an attorney can be compensated under EAJA. Costa, 2012

WL 3631255, at *1. Cases must be considered on an individualized

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basis. Id. In order to reduce the number of hours requested for

a particular task, a court must explain why the amount of time

requested is too high and provide specific reasons for making

significant reductions. Id., at *4 (citing Moreno v. City of

Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2012)).

II. Analysis

As noted, Defendant contends its position with respect to

Dr. Musselman’s opinion was substantially justified, and,

therefore, the Court should deny Plaintiff’s Motion for Attorney

Fees. Even if Plaintiff is entitled to attorneys’ fees,

Defendant contends Plaintiff’s request for $10,428.24 is

unreasonable.

A. Substantial Justification

Defendant contends its position with respect to 

Dr. Musselman’s opinion was substantially justified because 

the ALJ relied on the opinions of other medical sources 

including examining medical sources Jane Starbird, Ph.D.; Suzanne

Castro, Psy.D.; and Dorothy Anderson, Psy.D. Defendant also

contends its position was substantially justified because 

Dr. Musselman’s opinion did not establish Plaintiff would be

disabled for the requisite period.

Dr. Musselman, however, was Plaintiff’s treating physician,

and, therefore, “the Social Security Administration favors” 

Dr. Musselman’s opinion “over non-treating physicians.” Orn v.

6 - OPINION AND ORDER
Astrue, 495 F.3d 625, 631 (9th Cir. 2007). See also Garrison v.

Colvin, 759 F.3d 995, 1012 (9th Cir. 2014)(quoting Lester v,

Chater, 81 F.3d 821, 830 (9th Cir. 1995)(“‘As a general rule,

more weight should be given to the opinion of a treating source

than to the opinion of doctors who do not treat the claimant.’”). 

Accordingly, notwithstanding the presence of other opinions

rendered by nontreating physicians in the record, the ALJ was

required to provide “‘specific and legitimate reasons that are

supported by substantial evidence’” in order to reject 

Dr. Musselman’s opinion. See Garrison, 759 F.3d at 1012 (quoting

Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198 (9th Cir.

2008)).

 Here the ALJ failed to provide specific and legitimate

reasons for discrediting Dr. Musselman’s opinion in favor of the

opinions of Drs. Starbird, Castro, and Anderson. Thus,

Defendant’s position that the ALJ did not err when he discredited

Dr. Musselman’s opinion was not substantially justified.

B. Reasonableness of Plaintiff’s Requested Attorneys’ Fees

Plaintiff’s attorney represents she expended 68.0 hours on

this case and contends she should be reimbursed at a rate of

$191.70 per hour. In the exercise of “billing judgment,”

however, Plaintiff’s counsel has voluntarily reduced the number

of billed hours by 20 percent to 54.4 hours. Plaintiff,

7 - OPINION AND ORDER
therefore, seeks $10,428.48 in attorneys’ fees.2

Notwithstanding Plaintiff’s voluntary reduction in the

amount of attorneys’ fees sought, Defendant contends Plaintiff’s

attorney-fee request is unreasonable and should be further

reduced. In particular, Defendant contends Plaintiff prevailed

on only one of the eight issues that she raised in her memoranda

and several of her arguments were unreasonable.

Although the Court agrees with Defendant that some of

Plaintiff’s arguments were without merit, any reduction on that

basis is sufficiently covered by Plaintiff’s 20-percent voluntary

reduction. Although the 54.4 billed hours for which Plaintiff

seeks compensation are somewhat greater than the ordinary number

of hours spent on Social Security cases, that difference is

reasonable in this case in light of the need for Plaintiff’s

counsel (who did not represent Plaintiff at the administrative

level) to familiarize herself with the case and to review a 771-

page administrative record that is somewhat larger than the

average.

Accordingly, on this record the Court concludes the amount

of attorneys’ fees that Plaintiff requests is reasonable.

2

 As noted, Plaintiff also seeks a total of $19.00 in costs

and expenses. Defendant does not object to that request. 

8 - OPINION AND ORDER
CONCLUSION

For these reasons, the Court GRANTS Plaintiff’s Motion (#19)

for Attorney Fees and AWARDS to Plaintiff attorneys’ fees in the

amount of $10,428.24 and costs and expenses in the amount of

$19.00.

IT IS SO ORDERED.

DATED this 14th day of April, 2017.

 /s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

9 - OPINION AND ORDER