Davis v. Social Security Administration Commissioner

Filing 13

REPORT AND RECOMMENDATIONS re 10 First MOTION for Attorney Fees filed by Michael E. Davis. Objections to R&R due by 11/13/2009. Signed by Honorable James R. Marschewski on October 27, 2009. (rw)

IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FORT SMITH DIVISION MICHAEL E. DAVIS v. CIVIL NO. 08-2051 PLAINTIFF

MICHAEL J. ASTRUE, Commissioner Social Security Administration

DEFENDANT

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Plaintiff, Michael Davis, appealed the Commissioner's denial of benefits to this court. On July 13, 2009, a report and recommendation was entered recommending that the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. # 8). On July 31, 2009, the report and recommendation was adopted and the case was remanded for further consideration. (Doc. # 9). On October 7, 2009, plaintiff filed a motion for attorney's fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice Act (hereinafter "EAJA") requesting $2647.74 for 15.30 attorney hours at an hourly rate of $172.00 and $16.14 in expenses. (Doc. # 10, 11). The defendant has filed a response to plaintiff's motion voicing an objection to the hourly rate requested by counsel. (Doc. # 12). 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. Schaefer, 509 U.S. 292, 302 (1993), a social security claimant who obtains a sentence-four

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judgment reversing the Commissioner's denial of benefits and remanding the case for further proceedings is a prevailing party. The Commissioner filed a response expressing no objection to counsel's entitlement to fees pursuant to the EAJA. The court construes this lack of opposition to the award of a reasonable fee as an admission that the government's decision to deny benefits was not "substantially justified." 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). 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 2

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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). 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 the work." Id. Where documentation is inadequate, the court may reduce the award accordingly. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

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Plaintiff's counsel seeks reimbursement for work performed at an hourly rate of $172.00 per hour. 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. Plaintiff submitted a CPI in support of his requested hourly rate. While an increased hourly rate is authorized as long as a CPI is submitted, this Court will not approve the requested hourly rate of $172.00. See 28 U.S.C. § 2412(d)(2)(A); Johnson, 919 F.2d at 504. Instead, this Court only approves a maximum hourly rate of $167.00. We have reviewed counsel's itemization of time appended to plaintiff's application and note that the defendant has not objected to the number of hours for which counsel seeks a fee award. However, we note that plaintiff has requested .50 hours for filing the complaint and application for in forma pauperis and .25 hours for mailing by certified letter a copy of the complaint and summons to the appropriate parties. As these are tasks that could have easily been performed by support staff, we will deduct .75 attorney hours for the total number of compensable hours. Granville House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987) (work which could have been completed by support staff is not compensable under the EAJA). 4

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We also find counsel's request for.10 hours for receiving, reviewing and signing the consent to exercise jurisdiction and .10 hours requested for receiving and reviewing the Judgment to be excessive. This court concludes that it should not have taken an attorney experienced in handling social security cases this amount of time to perform these tasks as these were both standard one page documents. Bowman v. Secretary of H.H.S., 744 F.Supp 898 (E.D.Ark. 1989). Therefore, we will deduct .10 hours from the total number of compensable hours. Counsel seeks reimbursement for $16.14 in expenses incurred with regard to filing fees and expenses. Such expenses are recoverable under the EAJA and we find $16.14 to be a reasonable award. See Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988). Based on the above, we recommend awarding plaintiff's attorney fees under the EAJA for: 14.45 (15.30-.85) attorney hours, at the rate of $167.00 per hour and $16.14 in expenses for a total fee award of $2429.29. 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 have ten days from receipt of our report and recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely objections may result in waiver of the right to appeal questions of fact. The parties are reminded that objections must be both timely and specific to trigger de novo review by the district court.

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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. Dated this 27th day of October 2009. /s/ J. Marschewski HON. JAMES R. MARSCHEWSKI UNITED STATES MAGISTRATE JUDGE

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