McCarty v. Social Security Administration

Filing 18

ORDER granting in part and denying in part 15 Motion for Attorney Fees and awarding Ms. McKinnon attorney's fees in the amount of $3,782.50. The EAJA fee award is payable to pltf and mailed to pltf's counsel, but subject to any offset to satisfy any pre-existing debt owed to the United States. Signed by Judge Billy Roy Wilson on 7/2/12. (kpr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
GINA MCCARTY
V.

PLAINTIFF
4:11-CV-00022-BRW

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

ORDER
Pending is Movant Laura McKinnon’s1 Motion for EAJA Attorney Fees and Costs (Doc.
No. 15). Defendant has responded.2 For the following reasons, the Motion is GRANTED in part
and DENIED in part.
On January 11, 2011, Plaintiff filed a Complaint challenging the Administrative Law
Judge’s (“ALJ”) decision to deny her Social Security benefits.3 On March 1, 2012, I entered an
Order affirming in part and remanding in part the ALJ’s decision pursuant to a sentence four
remand under 42 U.S.C. § 405(g).4
On May 30, 2012, Ms. McKinnon filed the instant Motion for Attorney’s Fees under the
Equal Access to Justice Act (“EAJA”).5 In her request, she seeks payment for a total of 44.55
hours, or $7,573.50.6 Defendant objects to Ms. McKinnon’s request as excessive because she is

1

Ms. McKinnon is Plaintiff’s lawyer.

2

Doc. No. 17.

3

Doc. No. 2.

4

Doc. No. 13.

5

Doc. No. 15.

6

Id. In her Brief (Doc. No. 16) she says “Plaintiff has incurred the hours of legal and
paralegal services and costs that are itemized in Plaintiff’s attached exhibit;” however, I take
note that every entry is billed at Ms. McKinnon’s rate of $175.00 per hour.
1

billing for work that is clerical in nature.7 Defendant contends that $6,536.50 “adequately
compensates Plaintiff for reasonable attorney’s fees incurred in the instant litigation and remains
well above the amounts that this Court typically approves.”8 I find both amounts to be
excessive.
“Under the Equal Access to Justice Act, a prevailing social security claimant is entitled to
an award of reasonable attorney’s fees and expenses unless the Commissioner’s position in
denying benefits was ‘substantially unreasonable’ or special circumstances make an award
unjust.”9 In determining a reasonable fee, the Court has a duty to make an independent
evaluation of the attorney’s request and should exclude any hours “that were not ‘reasonably
expended.’”10
I.

Clerical Activities
“Purely clerical activities, regardless of who performs them, are considered overhead and

are not compensable as EAJA attorney fees.”11 In Granville House, Inc. v. Dept. of Health,
Education, & Welfare, the Eighth Circuit held that a movant was “not entitled to compensation
for the fifteen hours of work which could have been done by support staff.”12 The Eighth Circuit
has recognized the serving of summons by certified mail, receiving and calendaring a briefing

7

Doc. No. 17.

8

Id.

9

Theis v. Astrue, 828 F. Supp. 2d 1006 (E.D. Ark. 2011).

10

Hensley v. Eckerhart, 461 U.S. 424, 433-34 (1983) (citations omitted).

11

Gough v. Apfel, 133 F. Supp. 2d 878, 881 (W.D. Va. 2001) (citing Missouri v. Jenkins,
491 U.S. 274, 288 n.10 (1989)).
12

813 F.2d 881, 884 (8th Cir. 1987).
2

schedule, and filing a brief, among other things, are clerical in nature and not compensable under
the EAJA.13
I find the following entries, which total 3.4 hours to be clerical in nature.
12/22/2010

Correction of client’s IFP which completed incorrectly; revision;
instructions to staff with client contact; database notes. . . . . . . . 0.10

01/12/2011

Working Emails - ECF - IFP rec’d, ECF, Complaint, ECF, Order
Granting IFP, ECFsummons issued; updated file docket number,
complaint filed date, deadline and checklist for service of process,
marked deadline done, memo to file. . . . . . . . . . . . . . . . . . . . . . 0.50

01/28/2011

Updating computer data files . . . . . . . . . . . . . . . . . . . . . . . . . . . .0.25

01/31/2011

Correspondence, summons to clerk to issue and return to MLF with
consent to magistrate jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 0.15

02/11/2011

Working Emails, updated computer data files . . . . . . . . . . . . . . . 0.30

04/27/2011

Mail review, update of computer data . . . . . . . . . . . . . . . . . . . . . .0.25

05/01/2011

Working Emails, ECF Notice of Appearance, ECF Answer to
Complaint, ECF Notice re Conventional Filing, ECF Scheduling
Order, reviewed and updated file . . . . . . . . . . . . . . . . . . . . . . . . . 0.75

08/05/2011

Detailed file review; status letters; new staff instructions. . . . . .0.25

10/02/2011

Order of reassigning judge reviewed. . . . . . . . . . . . . . . . . . . . . . . 0.10

10/02/2011

Review of emails from CM/ECF system . . . . . . . . . . . . . . . . . . . 0.25

02/01/2012

Review of file and case note updates . . . . . . . . . . . . . . . . . . . . . . 0.50

Therefore, Ms. McKinnon’s hours are reduced by 3.4 hours.

13

Knudsen v. Barnhart, 360 F. Supp. 2d 963, 977 (N.D. Iowa 2004); see also Willhite v.
Astrue, Civil No. 2:10-cv-2169, 2012 WL 1567217 (W.D. Ark. May 2, 2012) (finding as clerical
in nature the ECF filing of Plaintiff’s consent to proceed before a Magistrate and the ECF filing
of EAJA documentation); Ashworth v. Astrue, Civil No. 10-2147, 2012 WL 1365171, at *3
(W.D. Ark. Apr. 19, 2012) (finding that “filing documents on the ECF system and preparing
form letters are clerical tasks”); Gregory v. Astrue, Civil No. 10-2070, 2011 WL 3876174, at *2
(W.D. Ark. Aug. 31, 2011) (finding as non-compensable under the EAJA time spent reviewing
mail, confirming case date, checklist regarding service of process, reviewing the file, and
receiving emails that a transcript was found).
3

II.

Client Communication
Based on her Billing Sheet, Ms. McKinnon spent 6.5 hours communicating with her

client.
11/20/2010

Correspondence to client regarding federal appeal . . . . . . . . . . . . 0.30

11/21/2010

Phone conference with client explaining Appeals Council and federal
options; notations to database and staff notes. Intra-office e-mails
with instructions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0.25

11/23/2010

Client calls re status updates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.25

12/20/2010

Status letter to client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.25

12/29/2010

Client in office revising IFP and answering appeal questions. . . . 0.25

01/15/2011

Client calls re status of case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0.25

02/11/2011

Client drop-in to office regarding status and questions . . . . . . . .
.0.25

03/23/2011
03/25/2011

Correspondence to client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0.10
Client phone call regarding her copy of federal complaint and status
letter, explanation of service of process and expected chronology;
notes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.50

04/12/2011

Correspondence to client regarding status of case . . . . . . . . . . . . .0.50

05/18/2011

Client calls re status of case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0.50

06/28/2011

Correspondence to client regarding status of case . . . . . . . . . . . 0.50

08/06/2011

Client call requesting update . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.25

08/10/2011

Office conference with client. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.10

09/02/2011

Client call requesting date of when we filed FED and approximate
wait time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.25

11/25/2011

Status letter to client . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.25

02/28/2012

Client call to get address of FED and date of appeal . . . . . . . . . .0.25

05/25/2012

Correspondence to client regarding Federal Decision . . . . . . . . .0.50
4

I also find this amount excessive. Plaintiff’s brief was filed in this case on
June 28, 2011.14 Before that time, Ms. McKinnon spent almost four hours communicating with
Plaintiff. This seems excessive when Ms. McKinnon had the entire record before her and her
primary job was to draft the brief.15 Furthermore, after the brief was filed, Ms. McKinnon spent
2.6 hours talking to Plaintiff. Because there is no explanation for the amount or length of these
conversations, the 6.5 hours spent communicating with Plaintiff is reduced to 4.0 hours.
III.

Preparation of EAJA Statement
Ms. McKinnon seeks 3.25 hours for “EAJA Motion, EAJA Brief, EAJA ITE.”16 This

amount is excessive because this is a standard fee petition and brief that has been submitted by
Plaintiff’s counsel in another social security case filed in this district.17 I find that 2.25 hours
should be deducted, for a total of 1.0 hour.
IV.

Preparation of the Brief

14

Doc. No. 10.

15

Theis, 828 F. Supp. 2d 1006 (E.D. Ark. 2011) (discussing that 30-minute telephone
calls with a client seemed excessive “where the primary work consisted of reviewing a record
and writing briefs, and where the representation began with a client consultation of 1.5 hours
followed by two subsequent client consultations of .75 hours each.”).
16

Doc. No. 15, Ex. 1.

17

See Shelia K. Nicholson v. Social Security Administration, 4:05-cv-00517-JMM,
Doc. No. 12 (E.D. Ark. Nov. 14, 2006); see also Humphries ex. rel. E.H. v. Astrue, No. 10-5115,
2012 WL 1885739, at *3 (W.D. Ark. March 23, 2012) (reducing from 3.2 hours to 1.0 hours
attorney’s billing sheet on preparing EAJA Motion because “the time claimed for preparing what
appear[ed] to be the standard fee petition and brief submitted by Plaintiff’s counsel [was]
excessive.”).
5

Ms. McKinnon seeks compensation for 26.75 hours for preparing and writing the appeal
brief. 18
01/08/2011

Review of file, work history and medical records; memo to file . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . 1.50

01/09/2011

Re-read ALJ LaPolt unfavorable decision and memorandum;
highlighted errors; drafted complaint and approved and signed
summons and civil cover sheet; best appeal arguments; instructions
to staff. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.00

04/29/2011

Transcript of record, initial processing; instructions to staff;
download to laptop for home reference and initiating of brief;
review of transcript; first review memo. . . . . . . . . . . . . . . . . . . 1.25

05/16/2011

Review of File for Appeal Brief. Medical evidence emphasis;
memo to file regarding Medical and dual arguments . . . . . . . .
0.75

05/20/2011

Second review of medical evidence; discussion with staff; revision
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0.50

06/03/2011

Brief Writing, Procedural History, Hearing Testimony, Medical
Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.50

06/09/2011

Brief Writing, issues and arguments . . . . . . . . . . . . . . . . . . . . . 6.25

06/10/2011

Brief Writing, unfavorable decision, issues, argument. . . . . . . .7.25

06/28/2011

Re-Reading and Editing Appeal brief, Filed Brief, ECF . . . . . 1.75

In Kramer v. Apfel, the court found that based on its experience “the usual time claimed
in cases involving issues that are not particularly complex or novel [] is fifteen (15) to twenty

18

See Roberson v. Astrue, Civil No. 11-2020, 2012 WL 1680133, at *5, (W.D. Ark.
Apr. 23, 2012) (the court concluded it should not have taken an experienced attorney 14.90 hours
to prepare a social security brief and reduced her request to 14.00 hours); Thomas v. Astrue, No.
10-1255-CV-W-FJG, 2012 WL 1564291 (W.D. Mo. Apr. 25, 2012) (finding that attorney who
sought compensation for 24 hours of time for researching and writing plaintiff’s brief in a routine
social security case was excessive given that the brief was only 21 pages and contained
boilerplate law).
6

(20) hours.”19 In her brief, Ms. McKinnon does not contend that Plaintiff’s case involved
complex issues. I find that it should not have taken an attorney of Ms. McKinnon’s experience
26.75 hours to prepare a fairly routine 22-page brief. Therefore, the time for the brief is reduced
to 13.375.20
Based on the Billing Sheet submitted by Ms. McKinnon and the hours I have deducted,
Ms. McKinnon is entitled to 22.25 hours for a total of $3,782.50. This is above the amount of
time suggested in Kramer, and represents a fair amount of compensation to Ms. McKinnon.
Under Astrue v. Ratliff,21 any EAJA fees should be awarded to the “prevailing party” or
the litigant. Therefore, Defendant states that in order to be compliance with Ratliff, these fees
must be awarded to Plaintiff, not to Plaintiff’s attorney. However, if Plaintiff has executed a
valid assignment to Ms. McKinnon of all rights in an attorney’s fee award and Plaintiff owes no
outstanding debt to the federal government, the attorney’s fee may be awarded to Ms.
McKinnon.
CONCLUSION
For the reasons set out above, Ms. McKinnon is entitled to attorney’s fees in
the amount of $3,782.50 -- this represents 22.25 hours at the rate of $170.00 per hour. The
EAJA fee award is payable to Plaintiff and mailed to Plaintiff’s counsel, but subject to any offset
to satisfy any pre-existing debt owed to the United States.22

19

57 F. Supp. 2d 774, 775 (S.D. Iowa, 1999).

20

This includes the 4.0 hours for client communication, the 13.375 hours for the brief, the
1.0 hour for preparation of the EAJA statement, and the remaining times on the Billing Sheet
which I have not accounted for in this Order.
21

130 S. Ct. 2521, 2528 (2010).

22

Id.
7

IT IS SO ORDERED this 2nd day of July, 2012.

/s /Billy Roy Wilson
UNITED STATES DISTRICT JUDGE

8