Phillips v. Social Security Administration Commissioner

Filing 14

ORDER awarding plaintiff Attorney Fees the amount of $2836.50 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. Signed by Honorable James R. Marschewski on August 5, 2011. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

CHADRICK A. PHILLIPS
v.

PLAINTIFF
CIVIL NO. 09-2154

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT
ORDER

Plaintiff, Chadrick A. Phillips, appealed the Commissioner’s denial of benefits to this
court. ECF No. 1. On February 23, 2011, an order was entered remanding Plaintiff’s case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 10. Plaintiff now
moves for a total of $3,371,25 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal
Access to Justice Act (“EAJA”), requesting compensation for 21.75 attorney hours at a rate of
$155.00. ECF Nos. 11, 12. Defendant filed a response objecting not to the amount requested,
but to the method of payment.1 ECF No. 13.
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
judgment reversing the Commissioner’s denial of benefits and remanding the case for further

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On June 14, 2010, the Supreme Court held that an EAJA fee award is payable to the prevailing
litigant, not the prevailing litigant’s attorney. Astrue v. Ratliff, 130 S.Ct. 2521, 2252-2253 (2010). Therefore,
any EAJA fee awarded by this court should be payable directly to Plaintiff.

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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 purpose 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
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
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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). 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

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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 (“CPI”). In this instance, counsel requests
attorney’s fees at an hourly rate of $155.00. ECF Nos. 11, 12. Counsel attached a copy of the
CPI as evidence that this rate is a proper reflection of the cost of living. ECF No. 11, at 3-118.
The court finds this rate to be reasonable. Accordingly, the undersigned finds that counsel is
entitled to an hourly rate of $155.00.
Attorney Hours
The court next addresses the number of hours Plaintiff’s counsel claims she spent
working on this case. Counsel seeks reimbursement for 2.00 hours for preparing the complaint,
in forma pauperis application, and accompanying documents, .50 hours for reviewing the filemarked complaint and IFP order, .50 hours for reviewing and signing the letters of service, .25
hours for receiving the green cards, entering information into her calendaring system, and
drafting an inter-office memorandum,2 .75 hours for reviewing the answer and scheduling order,
1.00 hour for reviewing the answer and drafting correspondence to Plaintiff regarding timelines,
.75 hours for reviewing Defendant’s brief, 1.50 hours for reviewing the memorandum opinion
and corresponding with her client, and 2.00 hours for preparing the EAJA petition,
memorandum, and exhibits.
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. Bowman v. Secretary of H.H.S.,
744 F.Supp. 898 (E.D.Ark. 1989). The Defendant’s appeal brief was only eight pages and the

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In the future, counsel should separate each entry so the court can more readily determine the amount
of time devoted to each task.

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report and recommendation was nine pages. Furthermore, receiving the green cards and
calendaring deadlines are tasks which could have been completed by support staff. See 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). We grant counsel 1.50
hours for drafting the complaint, .15 hours for reviewing the file-marked complaint and IFP
order, .15 hours for reviewing and signing the service letters, .50 hours for reviewing
Defendant’s answer and the scheduling order, .50 hours for drafting post-answer correspondence
to Plaintiff regarding timelines, .50 hours for reviewing Defendant’s appeal brief, 1.00 hour for
reviewing the memorandum opinion and corresponding with her client, and 1.50 hours for
preparing the EAJA motion and accompanying exhibits. Accordingly, we will deduct 3.45 hours
from the total number of compensable hours.
Counsel also requests compensation for 6.50 hours for analyzing, researching, drafting,
and editing the appeal brief. The court finds that the time requested is reasonable and will award
the full 6.50 hours.
Based on the above, the undersigned awards Plaintiff's attorney fees under the EAJA for
18.30 (21.75-3.45) hours at the rate of $155.00 per hour, for a total attorney's fee award of
$2,836.50. 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. See Astrue, 130 S.Ct. at 2529.
The parties are reminded that the award 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.

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Dated this 5th day of August 2011.

/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF U.S. MAGISTRATE JUDGE

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