Smith v. Colvin

Filing 27

MEMORANDUM AND OPINION that plaintiff's motion for attorney's fees is granted in part and denied in part; plaintiff is awarded attorney's fees in the amount of $6,015.59. Signed by Magistrate Judge Katherine P. Nelson on 6/3/2014. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
BROOKLAN DIANN SMITH,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Civil Action No. 2:13-00275-N

MEMORANDUM OPINION AND ORDER
This matter is before the Court, pursuant to 28 U.S.C. § 636(c) and Rule
54(d)(2)(A) of the Federal Rules of Civil Procedure, on the application by Plaintiff
Brooklan Diann Smith for an award of attorney’s fees under the Equal Access to
Justice Act, 28 U.S.C. § 2412 (the “EAJA”) (Docs. 23, 25), filed May 12, 2014, and the
Commissioner’s objection to her application (Doc. 26), filed May 27, 2014.
Upon consideration of all pertinent materials contained in this file, the
application is GRANTED IN PART and DENIED IN PART, 1 and it is
ORDERED that Plaintiff should receive a reasonable attorney’s fee in the amount
of $6,015.59 under the EAJA for legal services rendered by her attorney in this
Court. See Astrue v. Ratliff, --- U.S. ----, 130 S. Ct. 2521, 2526 & 2526-27 (2010)
(“Ratliff [] asserts that subsection (d)(1)(A)’s use of the verb ‘award’ renders § 2412(d)

Plaintiff’s proposed hourly rate calculation is not consistent with this Court’s
precedent. The undersigned has, however, utilized evidence from Plaintiff to conduct the
Court’s usual calculation for adjustment of hourly rate herein.
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fees payable directly to a prevailing party’s attorney[.] . . . We disagree. . . . The
plain meaning of the word ‘award’ in subsection (d)(1)(A) is [] that the court shall
‘give or assign by . . . judicial determination’ to the ‘prevailing party’ (here, Ratliff’s
client Ree) attorney’s fees in the amount sought and substantiated under, inter alia,
subsection (d)(1)(B). . . . The fact that the statute awards to the prevailing party
fees in which her attorney may have a beneficial interest or a contractual right does
not establish that the statute ‘awards’ the fees directly to the attorney. For the
reasons we have explained, the statute’s plain text does the opposite—it ‘awards’ the
fees to the litigant[.]”); cf. Brown v. Astrue, 271 Fed. App’x 741, 743 (10th Cir. Mar.
27, 2008) (“The district court correctly held that Mr. Brown’s assignment of his right
in the fees award to counsel does not overcome the clear EAJA mandate that the
award is to him as the prevailing party, and the fees belong to him. Thus, the
district court correctly declined to award the fees directly to counsel.”).
I.
A.

Discussion

Procedural Background

On February 10, 2014, this Court entered a Rule 58 judgment reversing and
remanding this cause to the Commissioner of Social Security pursuant to sentence
four of 42 U.S.C. § 405(g) for further proceedings.
memorandum opinion and order.)

(Doc. 22; see also Doc. 21,

In the application for an award of attorney’s fees

under the EAJA (Doc. 23), filed on May 12, 2014, Plaintiff requests attorney’s fees in
the amount of $6,037.38 to compensate her counsel for the time (32.25 hours) spent
representing her before this Court as of the date of the filing of the fee application
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(see generally id.). And in her objection to the application, the Commissioner does
not contest the reasonableness of the requested attorney’s fees; she contends instead
that no attorney’s fees should be awarded in this matter because her position in this
case was substantially justified. (See generally Doc. 26.)
B.

Substantial Justification and Prevailing Party

The Equal Access to Justice Act requires a district court to “award to a
prevailing party . . . fees and other expenses . . . incurred by that party in any civil
action . . . , including proceedings for judicial review of agency action, brought by or
against the United States . . . , unless the court finds that the position of the United
States was substantially justified or that special circumstances make an award
unjust.” 28 U.S.C. § 2412(d)(1)(A) (emphasis added).
While “‘[s]ubstantially justified’ is one of the myriad phrases in the law that
has no precise or fixed definition[, t]he Supreme Court has said that it means
‘justified in substance or in the main.’”

Grieves v. Astrue, 600 F. Supp. 2d 995, 999

(N.D. Ill. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)); see id. (“A
position that is ‘substantially justified’ must have a ‘reasonable basis both in law and
in fact.’”) (quoting Pierce, 487 U.S. at 565); cf. Golembiewski v. Barnhart, 382 F.3d
721, 724 (7th Cir. 2004) (a position is substantially justified if a “reasonable person
could believe the position was correct”).
EAJA decisions necessarily involve exercises of discretion because of
the sheer impracticability of formulating a rule of decision in such
cases. Questions that arise under the Act, like many that arise in
litigation generally, are not amenable to regulation by rule because
they involve multifarious, fleeting, special, narrow facts that utterly
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resist generalization—at least, for the time being.
Grieves, 600 F. Supp. 2d at 999 (internal citations and quotation marks omitted and
other modifications to original).
It is also essential to recall that “a position can be justified even though
it is not correct,” Pierce, 487 U.S. at 566, n.2, and “[the government]
could take a position that is substantially justified, yet lose [on the
merits].” Id. at 569. Analysis of questions of substantial justification
must take into account the government’s position in the underlying
action and the litigation posture it took while defending the validity of
that action in court. 28 U.S.C. § 2412(d)(2)(D). But, substantial
justification should not be confused with the “substantial evidence”
standard that applies to a court’s initial review of the case. Indeed,
the Supreme Court has cautioned that consideration of a fee petition
“‘should not result in a second major litigation.’” Pierce, 487 U.S. at
563. Thus, an EAJA petition requires the court to revisit the legal
and factual circumstances of this case from a different perspective—the
elusive standard of substantial justification—than it did in reviewing
the record on the initial go-round to determine whether there was
substantial evidence to support the conclusion.
Id. at 1000 (internal citations modified and some omitted); but see Cockerham v.
Secretary of Health & Human Servs., CIV.A. No. 87–1276, 1990 WL 11355, at *3
(E.D. La. Jan. 31, 1990) (“[T]he corresponding definition of ‘substantially justified’
used in the EAJA means ‘to be justified in substance or in the main . . . the action
must be justified to a degree that could satisfy a reasonable person, and must have a
reasonable basis in both law and fact.’

Clearly, definitions of the terms ‘substantial

evidence’ and ‘substantially justified’ are analogous; a reasonable mind must
conclude that when the [Commissioner]’s position was not based upon substantial
evidence, it cannot be found substantially justified.”) (quoting Pierce, 487 U.S. at
565); Scott v. Barnhart, No. 99 C 4651, 2003 WL 1524624, at *5 (N.D. Ill. Mar. 21,

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2003) (“When a court finds [] a lack of connection between the evidence in the record
and an ALJ’s conclusion, it is appropriate to find the Commissioner’s position not
substantially justified.”) (citations omitted).
On appeal to this Court, Smith provided three reasons for why she believes
the Commissioner’s decision to deny her benefits was in error (that is, not supported
by substantial evidence). After a careful review of the record, the Court determined
that Smith’s second reason—that the Commissioner’s decision should be reserved
because the ALJ erred by substituting her own opinion in place of the opinion of Dr.
Estock—alone precluded a finding that the ALJ’s decision was supported by
substantial evidence and, accordingly, necessitated remand for that reason alone.
Thus, the Court did not adjudicate, nor was there any reason for the Court to
adjudicate, Smith’s first and third reasons why she believes the Commissioner’s
decision was not supported by substantial evidence.

See, e.g., Pendley v. Heckler,

767 F.2d 1561, 1563 (11th Cir. 1985) (“Because the ‘misuse of the expert’s testimony
alone warrants reversal,’ we do not consider the appellant’s other claims.”); accord
Salter v. Astrue, No. CA 11–00681–C, 2012 WL 3817791, at *2 (S.D. Ala. Sept. 4,
2012); Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 & n.2 (S.D. Ala. 2001);
Gore v. Apfel, No. CIV.A.99–0590–CB–M, 2000 WL 284218, at *1-2 (S.D. Ala. Mar.
10, 2000).
Turning to her opposition to Smith’s EAJA petition, the Commissioner does
not argue that she was substantially justified by defending the ALJ’s choice not to
consider all aspects of a medical source’s opinion, which is why this Court found the
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Commissioner’s decision not to be supported by substantial evidence. See Smith v.
Colvin, Civil Action No. 2:13–00275–N, 2014 WL 518057, at *5 (S.D. Ala. Feb. 10,
2014) (“[T]he ALJ’s failure to explicitly address the absenteeism aspect of Dr.
Estock’s opinion requires the Court to conclude that the ALJ’s decision is not
supported by substantial evidence. And, accordingly, there is no choice but to order
that this matter be remanded for further consideration not inconsistent with the
analysis herein.” (citation omitted)).

The Commissioner instead reargues her

position that this Court should, essentially, “get into the ALJ’s head” by finding that
the ALJ implicitly considered Dr. Estock’s opinion as to absenteeism (that Smith
would miss work up to two days each month) because, by finding Smith not disabled,
the ALJ obviously accepted the vocational expert’s testimony that, as to the jobs at
issue, Smith could not be absent from work more than one day per month and, thus,
rejected Dr. Estock’s absenteeism opinion.
This argument, although recast in terms of substantial justification, is again
not persuasive. In reviewing the Commissioner’s decision, this Court “must judge
the propriety of [, for example, an ALJ’s decision] solely by the grounds invoked by
the [ALJ]” and, accordingly, may not determine that such a decision is proper based
on grounds not stated by the ALJ. Security & Exch. Comm’n v. Chenery Corp., 332
U.S. 194, 196 (1947); compare id., with, e.g., Snyder ex rel. Walker v. Commissioner of
Soc. Sec., No. 2:12–cv–0186–KJN, 2013 WL 4676356, at *2 (E.D. Cal. Aug. 30, 2013)
(“Although the Commissioner attempts to demonstrate substantial justification by
showing how the ALJ could potentially have weighed [certain] opinions . . . against
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other record evidence, and what germane reasons the ALJ could potentially have
used to discount . . . [certain] testimony, the fact remains that the ALJ failed to
perform such analysis . . . . As such, the Commissioner’s position during the
administrative proceedings, and its defense of that position in the litigation before
this court, were not substantially justified.” (citations omitted and emphasis in
original)).
Having found, as to the reason upon which the Court remanded, that the
Commissioner’s position in this litigation was not substantially justified, the
undersigned now turns to the Commissioner’s argument that because “this case
[was] remanded on a single issue” that somehow signals that the Court’s “finding of
error [was] limited” and, thus, “is suggestive of the overall reasonableness of the
Commissioner’s position.”

(Doc. 26 at 1-2.)

In support of this argument—that “the Court should find that the
Commissioner reasonably defended the case given the limited basis for its
remand”—the Commissioner cites a single decision, Hardisty v. Astrue, 592 F.3d
1072 (9th Cir. 2010). While Hardisty has yet to be analyzed by a court in this
Circuit, district courts to consider Hardisty’s application to cases similarly postured
to this one—that is, a case in which a district court (1) remands the Commissioner’s
decision on but one of several grounds urged and (2) then finds the Commissioner’s
position vis-à-vis that ground not to be have been substantially justified—have
found Hardisty inapposite. See, e.g., Roberts v. Astrue, No. C10–5225–RJB–JRC,
2011 WL 3054904 (W.D. Wash. June 29, 2011) (“Hardisty is binding precedent only
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when a plaintiff has achieved a reversal and remand to the Social Security
Administration on an underlying matter on which the government’s position
nevertheless was substantially justified. This conclusion best aligns Hardisty with
the U.S. Supreme Court’s decision in Hensley[ v. Eckerhardt, 461 U.S. 424, 437
(1983),]” in which it was held that a request for attorney’s fees should not result in a
second major litigation (emphasis added)), report and recommendation adopted,
2011 WL 3047701 (W.D. Wash. July 25, 2011); see also id. (noting that courts in the
Ninth Circuit “consider whether ‘the position of the government was, as a whole,
substantially justified’” (quoting Guitierrez v. Barnhart, 274 F.3d 1255, 1259 (9th
Cir. 2001) (in turn quoting United States v. Rubin, 97 F.3d 373, 376 (9th Cir. 1996)))
(emphasis provided by Guitierrez)); compare id., with Strong v. Commissioner of Soc.
Sec. Admin., 461 Fed. App’x 299, 301 (4th Cir. Jan. 19, 2012) (per curiam)
(“Evaluating whether the Government’s position was substantially justified is not
‘an issue-by-issue analysis’ but an examination of ‘the totality of circumstances.’”
(quoting Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993))).
The Court’s decision that this matter should be remanded because the ALJ’s
consideration of Dr. Estock’s opinion shows the ALJ’s decision is not supported by
substantial evidence is not, contrary to the Commissioner’s belief, “suggestive of the
overall reasonableness of the Commissioner’s position.”

Just as this Court found it

should not “get into the ALJ’s head” and make inferences as to the ALJ’s
consideration of Dr. Estock’s opinion, the Commissioner should likewise not infer
that, because the Court had no need to adjudicate Smith’s other two reasons in
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support of remand, this Court believes that the Commissioner’s litigation position
here is “two-thirds” (or overall) substantially justified. Accepting such an approach
would actually fly in the face of Hardisty because it would force the Court to consider
arguments in the context of the EAJA that it did not consider previously. See, e.g.,
Belcher v. Astrue, No. 1:09cv1234 DLB, 2010 WL 5111435, at *2 (E.D. Cal. Dec. 9,
2010) (“Requiring the district court to determine whether the government’s position
on unadjudicated issues was substantially justified would put the court ‘in the
position of conducting essentially de novo review of the entire case for purposes of
the fee litigation, contrary to the command against ‘spawn[ing] a second litigation’ of
the Supreme Court and to the far more streamlined ‘substantial justification’ review
envisioned by the EAJA itself.’” (quoting Hardisty, 592 F.3d at 1078 (internal
citations omitted)).
The Commissioner’s objection based on substantial justification is accordingly
OVERRULED.

Further, because the Commissioner makes no argument that

Plaintiff is not a prevailing party under the EAJA,2 the Court focuses its attention
on other matters.
C.

Timeliness

The EAJA requires a prevailing party to file an application for attorney’s fees
within thirty (30) days of final judgment in the action. 28 U.S.C. § 2412(d)(1)(B).
The thirty-day clock did not begin to run in this case until the Court’s February 10,
“[A] party who wins a sentence-four remand order is a prevailing party.”
Shalala v. Schaefer, 509 U.S. 292, 302 (1993). (See Doc. 22, judgment.)
2

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2014 Judgment became final, which occurred at the end of the sixty (60) days for
appeal provided under Rule 4(a)(1)(B)(iii) of the Federal Rules of Appellate
Procedure, see Shalala v. Schaefer, 509 U.S. 292, 302 (1993), which was April 11,
2014. Thirty days from April 11, 2014 was Sunday, May 11, 2014.

Therefore, the

application filed in this case, bearing a date of Monday, May 12, 2014, was timely.
See FED. R. CIV. P. 6(a)(1)(C).
D.

Fees Analysis

The EAJA is a fee-shifting statute. And the Supreme Court has indicated
that “‘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.’”

Watford v. Heckler, 765 F.2d 1562, 1568 (11th Cir. 1985)

(EAJA) (quoting Hensley, 461 U.S. at 433 (1983) (§ 1988)); see Jean v. Nelson, 863
F.2d 759, 772-773 (11th Cir. 1988) (discussing the reasonableness of the hours
expended in the context of contentions by the government that the fee requests were
not supported by sufficient documentation and often involved a duplication of effort),
aff'd sub nom. Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990).
This calculation provides an objective basis on which to make an initial
estimate of the value of a lawyer’s services. The party seeking an
award of fees should submit evidence supporting the hours worked and
the rates claimed. Where the documentation of hours is inadequate,
the district court may reduce the award accordingly. The district court
also should exclude from this initial fee calculation hours that were not
“reasonably expended.” . . . Cases may be overstaffed, and the skill and
experience of lawyers vary widely. Counsel for the prevailing party
should make a good-faith effort to exclude from a fee request hours that
are excessive, redundant, or otherwise unnecessary, just as a lawyer in
private practice ethically is obligated to exclude such hours from his fee
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submission. “In the private sector, ‘billing judgment’ is an important
component in fee setting. It is no less important here. Hours that are
not properly billed to one’s client also are not properly billed to one’s
adversary pursuant to statutory authority.”
Hensley, 461 U.S. at 433-34 (citations omitted); see also id. at 437 (“[T]he fee
applicant bears the burden of establishing entitlement to an award and documenting
the appropriate hours expended and hourly rates.”); ACLU of Ga. v. Barnes, 168 F.3d
423, 428 (11th Cir. 1999) (“If fee applicants do not exercise billing judgment, courts
are obligated to do it for them, to cut the amount of hours for which payment is
sought, pruning out those that are ‘excessive, redundant, or otherwise unnecessary.’
Courts are not authorized to be generous with the money of others, and it is as much
the duty of courts to see that excessive fees and expenses are not awarded as it is to
see that an adequate amount is awarded.”); Norman v. Housing Auth. of City of
Montgomery, 836 F.2d 1292, 1301 (11th Cir. 1988) (“Excluding excessive or
otherwise unnecessary hours under the rubric of ‘billing judgment’ means that a
lawyer may not be compensated for hours spent on activities for which he would not
bill a client of means who was seriously intent on vindicating similar rights,
recognizing that in the private sector the economically rational person engages in
some cost benefit analysis.”).
In Norman, the Eleventh Circuit indicated that “the measure of reasonable
hours is determined by the profession’s judgment of the time that may be
conscionably billed and not the least time in which it might theoretically have been
done.”

836 F.2d at 1306. Because the Commissioner interposes no objection to the

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fee petition, the Court finds that Plaintiff’s counsel reasonably spent thirty-two
and one/fourth (32.25) hours on legal tasks in this case.
With respect to a determination of the hourly rate to apply in a given EAJA
case, for services performed by attorneys, the express language of the Act, as
amended by the Contract with America Advancement Act of 1996, provides in
pertinent part as follows:
The amount of fees awarded under this subsection shall be based upon
prevailing market rates for the kind and quality of the services
furnished, except that . . . attorney fees shall not be awarded in excess
of $125.00 per hour unless the court determines that an increase in the
cost of living or a special factor, such as the limited availability of
qualified attorneys for the proceedings involved, justifies a higher fee.
28 U.S.C. § 2412(d)(2)(A) (Cum. Supp. 1997). In Meyer v. Sullivan, 958 F.2d 1029
(11th Cir. 1992), the Eleventh Circuit determined that the EAJA establishes a
two-step analysis for determining the appropriate hourly rate to be applied in
calculating attorney’s fees under the Act.
The first step in the analysis, . . . is to determine the market rate for
“similar services [provided] by lawyers of reasonably comparable skills,
experience, and reputation.” . . . The second step, which is needed only
if the market rate is greater than $[125] per hour, is to determine
whether the court should adjust the hourly fee upward from $[125] to
take into account an increase in the cost of living, or a special factor.
Id. at 1033-1034 (citations and footnote omitted).
For years, the prevailing market rate in the Southern District of Alabama has
been $125.00 per hour. See, e.g., Willits v. Massanari, CA 00-0530-RV-C; Boggs v.
Massanari, 00-0408-P-C; Boone v. Apfel, CA 99-0965-CB-L.

This Court has

adjusted that rate to account for the increase in the cost of living. Lucy v. Barnhart,
12

CA 06-0147-C, Doc. 32.

More specifically, the Court has adopted the following

formula to be used in calculating all future awards of attorney’s fees under the
EAJA: “‘($125/hour) x (CPI-U Annual Average “All Items Index,” South Urban, for
month and year of temporal midpoint ) / 152.4, where 152.4 equals the CPI-U of
March 1996, the month and year in which the $125 cap was enacted.’”
(quoting Doc. 31 at 2).)

(Id. at 11

The temporal midpoint in this case was in October 2013,

the complaint having been prepared and filed on May 23, 2013 (see Doc. 1), and the
Court having entered its memorandum opinion and order and corresponding
judgment on February 10, 2014 (see Docs. 21, 22). The Court CPI-U for October
2013 was 227.420.

(See Doc. 23-4.)

Plugging the relevant numbers into the

foregoing formula renders the following equation: ($125 x 227.420) / 152.4.
Completion of this equation renders an hourly rate of $186.53. In consideration of
the foregoing, Plaintiff should be awarded an attorney’s fee in the amount of
$6,015.59 under the EAJA for the 32.25 hours her attorneys spent performing work
traditionally performed by attorneys in Social Security cases.
II.

Conclusion

The Court therefore ORDERS that Plaintiff be awarded attorney’s fees in the
amount of $6,015.59 under the Equal Access to Justice Act.

DONE and ORDERED this the 3rd day of June, 2014.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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