Barnes v. Social Security Administration Commissioner

Filing 18

ORDER on 16 Motion for Attorney Fees and awarding $2503.00 and this amount should be paid in addition to, and not out of, any past due benefits which plaintiff may be awarded in the future; Further this award should be paid directly to plaintiff's counsel. Signed by Honorable James R. Marschewski on March 17, 2009. (rw)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION SANDRA BARNES v. CIVIL NO. 07-2141 PLAINTIFF MICHAEL J. ASTRUE, Commissioner Social Security Administration DEFENDANT ORDER Plaintiff, Sandra Barnes, appealed the Commissioner's denial of benefits to this court. On December 10, 2008, judgment was entered remanding plaintiff's case to the Commissioner pursuant to sentence four of 42 U.S.C. 405(g). (Doc. # 15). Plaintiff now moves for an award of $3321.75 in attorney's fees and costs under 28 U.S.C. 2412, the Equal Access to Justice Act (hereinafter "EAJA"), requesting compensation for 18.501 attorney hours at an hourly rate of $165.00, and 4.202 paralegal hours at an hourly rate of $50.00. (Doc. # 16). The defendant has filed a response voicing no objections to counsel's request for fees. (Doc. #17). Pursuant to 28 U.S.C. 2412(d)(1)(A), the court must award attorney's fees to a prevailing social security claimant unless the Commissioner's position in denying benefits was substantially justified. The burden is on the Commissioner to show substantial justification for the government's denial of benefits. Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir. 1986). After reviewing the file, we find plaintiff is a prevailing party in this matter. Under Shalala v. 1 A lth o u g h plaintiff's counsel indicated that he had spent a total of 18.95 attorney hours on the case, this w a s a miscalculation. Counsel actually only spent 18.50 attorney hours representing the plaintiff. Counsel also miscalculated the total number of paralegal hours. Counsel's documentation indicates th a t a total of 3.90 paralegal hours were expended in this case. However, based on counsel's itemization of s e r v ic e s rendered, there were actually 4.20 paralegal hours expended in the case. 2 AO72A (Rev. 8/82) Schaefer, 509 U.S. 292, 302 (1993), a social security claimant who obtains a sentence-four judgment reversing the Commissioner's denial of benefits and remanding the case for further proceedings is a prevailing party. An award of attorney's fees under the EAJA is appropriate even though at the conclusion of the case, plaintiff's attorney may be authorized to charge and collect a fee pursuant to 42 U.S.C. 406(b)(1). Recovery of attorney's fees under both the EAJA and 42 U.S.C. 406(b)(1) was specifically allowed when Congress amended the EAJA in 1985. Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S.Ct. 1817, 1822, 152 L.Ed.2d 996 (2002), citing Pub.L. 99-80, 3, 99 Stat. 186 (1985). To permit a fee award under the EAJA, assuming, of course, that the necessary standard is met, in addition to that allowed by the district court out of a claimant's past-due benefits does no more than reimburse the claimant for his or her expenses and results in no windfall for the attorney. Meyers v. Heckler, 625 F.Supp. 228, 231 (S.D.Ohio 1985). Furthermore, awarding fees under both acts facilitates the purposes of the EAJA, which is to shift to the United States the prevailing party's litigation expenses incurred while contesting unreasonable government action. Id. See also, Cornella v. Schweiker, 728 F.2d 978 (8th Cir.1984). The EAJA further requires an attorney seeking fees to submit "an itemized statement...stating the actual time expended and the rate at which fees and other expenses were computed." 28 U.S.C. 2412(d)(1)(B). Attorneys seeking fees under federal fee-shifting statutes such as the EAJA are required to present fee applications with "contemporaneous time records of hours worked and rates claimed, plus a detailed description of the subject matter of 2 AO72A (Rev. 8/82) the work." Id. Where documentation is inadequate, the court may reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). In determining a reasonable attorney's fee, the court will in each case consider the following factors: time and labor required; the difficulty of questions involved; the skill required to handle the problems presented; the attorney's experience, ability, and reputation; the benefits resulting to the client from the services; the customary fee for similar services; the contingency or certainty of compensation; the results obtained; and the amount involved. Allen v. Heckler, 588 F.Supp. 1247 (W.D.N.Y. 1984). However, the EAJA is not designed to reimburse without limit. Pierce v. Underwood, 487 U.S. 552, 573 (1988). The district court is "in the best position to evaluate counsel's services and fee request, particularly when the court has had the opportunity to observe firsthand counsel's representation on the substantive aspects of the disability claim." Hickey v. Secretary of HHS, 923 F.2d 585, 586 (8th Cir. 1991)(quoting Cotter v. Bowen, 879 F.2d 359, 361 (8th Cir. 1989)). The court can determine the reasonableness and accuracy of a fee request, even in the absence of an objection by the Commissioner. See Decker v. Sullivan, 976 F.2d 456, 459 (8th Cir. 1992) ("Although the issue was not raised on appeal, fairness to the parties requires an accurately calculated attorney's fee award."). The Contract with America Advancement Act of 1996, passed on March 29, 1996, amended the EAJA and increased the statutory ceiling for the EAJA fee awards from $75.00 to $125.00 per hour. See 28 U.S.C. 2 412(d)(2)(A). Plaintiff requests attorney's fees under the EAJA at an hourly rate of $165.00. 3 AO72A (Rev. 8/82) Attorney's fees may not be awarded in excess of $125.00 per hour - the maximum statutory rate under 2412(d)(2)(A) - unless the court finds that an increase in the cost of living or a special factor such as the limited availability of qualified attorneys justifies a higher fee. 28 U.S.C. 2412(d)(2)(A). The decision to increase the hourly rate is not automatic and remains at the discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074 (8th Cir. 1989). In Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990), the court stated that the hourly rate may be increased when there is "uncontested proof of an increase in the cost of living sufficient to justify hourly attorney's fees of more than $75.00 an hour," such as a copy of the Consumer Price Index. In this case, counsel has attached a summary of the Consumer Price Index as an exhibit and has presented evidence of an increase in the cost of living. Counsel has requested an hourly rate of $165.00 for work performed before this court. The Commissioner has raised no objection to the hourly rate requested, and we agree that the requested hourly rate is appropriate. We find that an award based upon an hourly rate of $165.00 per hour, reflecting an increase in the cost of living, will result in consistent hourly fee awards in cases in Arkansas. See Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir.1990). Thus, we find that counsel is entitled to an hourly rate for the award of attorney's fees in this case in the amount of $165.00 per hour. Plaintiff's counsel has also requested compensation for paralegal hours worked at the rate of $50.00 per hour. Accordingly, we find $50.00 per hour for paralegal work to be reasonable. See Richlin Security Service Company v. Chertoff, 128 S.Ct. 2007 (U.S. 2008). We next address the number of hours plaintiff's counsel claims he spent working on this case. Plaintiff's counsel seeks reimbursement for 1.50 paralegal hours for preparing the petition, 4 AO72A (Rev. 8/82) affidavit of financial status, motion to proceed In Forma Pauperis, summons, and cover sheet and 2.00 paralegal hours for drafting the EAJA motion and supporting documentation. This court concludes that it should not have taken an attorney experienced in handling social security cases this amount of time to perform this task. Bowman v. Secretary of H.H.S., 744 F.Supp 898 (E.D.Ark. 1989). Therefore, we will deduct 1.00 hours from the total number of paralegal hours compensated. Counsel also requests compensation for 15.30 hours for the preparation of plaintiff's brief. However, there were no unique or complex issues to be developed in this particular case, and the transcript was a mere 190 pages long. Plaintiff's counsel frequently represents social security plaintiff's before this court and should be well versed in social security law. Accordingly, we find that the time submitted for preparing this brief to be excessive. Therefore we are reducing the number of hours submitted for the preparation of plaintiff's brief to 11.00 hours. Based on the above, we award plaintiff's attorney fees under the EAJA for: 14.20 (18.504.30) attorney hours, at the rate of $165.00 per hour and 3.20 (4.20-1.00) paralegal hours at the rate of $50.00 per hour for a total attorney's fee award of $2503.00. This amount should be paid in addition to, and not out of, any past due benefits which plaintiff may be awarded in the future. Further, this award should be paid directly to plaintiff's counsel. Ratliff v. Astrue, 540 F.3d 800, 802 (8th Cir. 2008). The parties are reminded that the award herein under the EAJA will be taken into account at such time as a reasonable fee is determined pursuant to 42 U.S.C. 406, in order to prevent double recovery by counsel for the plaintiff. 5 AO72A (Rev. 8/82) Dated this 17th day of March 2009. /s/ J. Marschewski H O N . JAMES R. MARSCHEWSKI U N ITED STATES MAGISTRATE JUDGE 6 AO72A (Rev. 8/82)

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