Blake v. Social Security Administration Commissioner

Filing 13

ORDER ON MOTION FOR ATTORNEY'S FEES in the amount of $5054.40. 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, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable James R. Marschewski on July 17, 2012. (sh)

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

JOHN LANCE BLAKE

v.

PLAINTIFF

CIVIL NO. 2:11-cv-2030

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

ORDER ON MOTION FOR ATTORNEY’S FEES
Plaintiff, John Lance Blake, appealed the Commissioner’s denial of benefits to this court.
ECF No. 1. On February 28, 2012, a judgment 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 $5,990.00 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to
Justice Act (“EAJA”), requesting compensation for 27.40 attorney hours at a rate of $200.00 for
work performed from 2009 - 2012. ECF No. 11. Defendant filed a response, objecting to the
following: (1) attorney hourly rate requested for work performed in 2010, 2011 and 2012; (2)
attorney hours billed as excessive and clerical in nature and non-compensability of Plaintiff’s motion
for extension; (3) 3.20 secretarial hours as clerical in nature; and (4) payment of EAJA directly to
Plaintiff’s attorney in violation of the Anti-Assignment Act . ECF No. 12. A hearing on the motion
for attorney fees was held on July 12, 2012, before the undersigned.
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,

the undersigned finds 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 proceedings is a prevailing
party.
1. Attorney Hourly Rate:
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

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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 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. § 2412(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
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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
(“CPI”). In this instance, counsel requests attorney’s fees at an hourly rate of $200.00 for work
performed from 2010 - 2012. ECF No. 11, at 1. Counsel did not attach a summary of the CPI-South
as evidence of an increase in the cost of living, as is customary for these motions.
While an increased hourly rate is authorized as long as the CPI is submitted, this court will not
approve the hourly rate requested for 2010, 2011 or 2012. See 28 U.S.C. § 2412(d)(2)(A); Johnson,
919 F.2d at 504. The court has previously approved rates of $173.00 for work performed in 2010 and
$174.00 for performed in 2011. On January 6, 2012, Honorable Jimm Larry Hendren signed

Amended General Order No. 39, which governs attorney’s fees under the EAJA. Beginning on
January 2, 2012, the CPI-South index for December of the preceding year shall constitute the
maximum hourly rate of EAJA fees which may be awarded for the following year. The court has
adopted the following formula for calculating cost of living increases:
(December CPI of preceding year) x $125 (Maximum Statutory Rate) = Adjusted rate
152.4 (March 1996 CPI)

Applying this formula and rounding to the nearest whole number, the 2012 hourly rate
is calculated as follows:
219.469 (Dec. 2011 CPI) x $125 (Maximum Statutory Rate) = $180.00
152.4 (March 1996 CPI)
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Thus, counsel is entitled to a rate of $180.00 for work performed in 2012. In summary,
Plaintiff’s counsel will be granted: $173.00 per hour for work performed in 2010, $174.00 per hour
for work performed in 2011, and $180.00 per hour for work performed in 2012.
2. Attorney Hours Calculated with Attorney Rate:
The court next addresses the number of hours Plaintiff’s counsel claims he spent working on
this case. Counsel requested reimbursement of 27.40 hours for work completed in 2009-2012. ECF
No. 11. The Commissioner argues the total number of Plaintiff’s attorney hours are excessive and
compensation of clerical matters, which are not allowed. ECF No. 11 at 3-4; Granville House Inc.
v. Dep’t of Health, Educ., and Welfare, 813 F.2d 881, 884 (8th Cir. 1987). The Commissioner also
argues that Plaintiff’s counsel is not entitled to compensation for his time in filing extensions. See
Hart v. Astrue, No. 6:10-cv-06081 (W.D. Ark.) (Doc. 16, Order 5/23/12, at 4) (compensation for
extension requests are not compensable under EAJA); Action on Smoking and Health v. CAB, 724,
F.2d 211, 217 (D.C. Cir. 1984) (purpose of EAJA is to minimize costs of representation to the
taxpayers)). The court made the following determinations based on the billing entry submitted by
Counsel, objections by the Government, and findings by the court:

Date

Work Completed or
Court Struck

Amount
Billed

Time
Granted

2/10/2009 R/notice of decision
12/21/2010 R/notice of appeals
council action
Total for 2009-2010

0.10
0.10

0.10
0.10

173.00
173.00

0.20

$ 173.00

2/11/2011 D/cert ltr to C. Eldridge
D/cert letr to M. Astrue
R/Summons
D/Complaint
D/Cert ltr to E. Holder
w/summ & complaint
R/receipt of filing fee

0.20
0.20
0.10
0.20
0.20

0.20
0.20
0.10
0.20
0.20

174.00
174.00
174.00
174.00
174.00

0.10

Time Reason Court Hourly Rate
Struck gave for strike Alllowed

0.10

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clerical

Total Amount Granted

$
$

17.30
17.30
$

$
$
$
$
$

34.80
34.80
17.40
34.80
34.80

34.60

4/15/2011 R/Answer to complaint
4/18/2011 R/email w/not of elec
filing
R/email from dist cout
w/login
R/email from PACER
w/login
R/email from USCD
conf CM/ECF access
5/31/2011 R/Aff of service
R/email from USCD-aff
of serv filed
R/email w/not of elec
filing - aff of serv
7/1/2011 R/cin/dockect print out
7/7/2011 R/email w/not of elec
filing - mot for ext
7/8/2011 Review transcript
Review transcript
R/email w/not of elec
filing - ord granting mot
7/11/2011 Complete review of
trans & research
R/email w/not of elec
filing - due date for
brief
7/12/2011 Research & further
record review
R/email from PACER no fees due
7/14/2011 D/introduction and
prev history
D/hypothetical
question introduction
D/credibility intro
7/15/2011 D/credibility authority
D/discussion of HQ
7/16/2011 D/summary of HQ
7/17/2011 D/Med history
D/Med history
D/Med history
Research duty &
development record
7/20/2011 D/discussion of failure
to develop record
7/26/2011 D/unsupported
credibility findings
8/2/2011 D/Summit Med history
D/Dr. Danny Silver med
hist
D/Corrections and
conclusion
Review and revise brief
8/3/2011 D/Plaintiff's testimony
summary

0.10
0.10

0.10

174.00

0.10

clerical

0.10
0.10

0.10
0.10

104.40

clerical

0.10

$

clerical

0.10

348.00

174.00

0.10

$

clerical

0.10

121.80
139.20

174.00

0.10

$
$

clerical

0.10

17.40

174.00
174.00

0.10

$

clerical

0.10

17.40

174.00

0.10

$

clerical
ext. filing

0.10
0.10

0.10

0.70
0.80
0.10

0.70
0.80

2.00

2.00

0.10

0.10

0.10

0.60

ext. filing

clerical

0.60

0.10

0.10

clerical

1.00

1.00

174.00

$

174.00

1.30

1.30

174.00

$

226.20

0.70
0.50
1.00
2.00
3.50
0.40
2.60
0.80

0.70
0.50
1.00
2.00
3.50
0.40
2.60
0.80

174.00
174.00
174.00
174.00
174.00
174.00
174.00
174.00

$
$
$
$
$
$
$
$

121.80
87.00
174.00
348.00
609.00
69.60
452.40
139.20

1.50

1.50

174.00

$

261.00

0.80

0.80

174.00

$

139.20

0.60
0.60

0.60
0.60

174.00
174.00

$
$

104.40
104.40

1.20

1.20

174.00

$

208.80

1.00
0.50

1.00
0.50

174.00
174.00

$
$

174.00
87.00

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8/4/2011 Final review & revisions
8/11/2011 R/email w/not of elec
filing - P&Cvt consent
9/1/2011 R/email w/not of elect
filing - app brief
Totals for 2011

0.40
0.10

2/28/2012 R/email w/not of elect
filing - mem opinion
3/28/2012
D/ltr re: open case
7/12/2012 Court approved EAJA
Fee Memo preparation
Totals for 2012

0.10

TOTAL AMOUNT
AWARDED

0.40
0.10

0.10

174.00
174.00
0.10

$
$

69.60
17.40

clerical

25.70

0.10
1.00

$ 174.00

0.10

180.00

$

18.00

180.00

$

180.00

0.10
1.00

clerical
contemp.
record

1.10

$ 180.00

27.00

$ 4,471.80

$ 198.00
$ 4,704.40

Accordingly, the court finds that counsel is entitled to 27.00 hours at an hourly rate of
$173.00 per hour for 0.20 hours of work performed in 2009 - 2010 (total $34.60), $174.00 per hour
for 25.70 hours of work performed in 2011 (total $4,471.80), and $180.00 per hour for 1.10 hours
of work performed in 2012 (total $198.00), totaling $4,704.40 for total attorney work completed.
3. Secretarial Time:
Counsel seeks reimbursement of 3.20 hours of secretarial time. ECF No. 11. At the hearing,
counsel clarified that the work was not performed by a paralegal but by a purely administrative staff.
The Commissioner argues that clerical work performed by Plaintiff counsel’s secretary is not
compensable. Granville House Inc. v. Dep’t of Health, Educ., and Welfare, 813 F.2d 881, 884 (8th
Cir. 1987) (work completed by support staff is not compensable under EAJA). The court agrees with
the Commissioner and strikes Plaintiff’s counsel’s request for 3.20 hours of secretarial time, as it is
purely administrative and not compensable under EAJA.

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4. Assignment of EAJA:
Counsel argues Plaintiff owes no outstanding debts to the federal government and attached
“Plaintiff’s Affidavit and Assignment of EAJA Fee” to his motion for fees. ECF No. 11 at 3. While
counsel did not argue that he meets the qualifications of the Anti-Assignment Act, the Government
responds that Plaintiff did not execute a valid assignment of his claims against the United States, per
the requirements of the Anti-Assignment Act. 31 U.S.C. § 3727. The court notes the Supreme Court
held that an EAJA fee award is payable to the prevailing litigant, not the attorney. Astrue v. Ratliff,
130 S.Ct. 2521, 2524 (2010).
According to the Anti-Assignment Act, an assignment may be made “only after a claim is
allowed, the amount of the claim is decided, and a warrant for payment of the claim has been
issued.” 31. U.S.C. § 3727(b). Additionally, the assignment shall specify the warrant, must be made
freely, and must be attested to by two witnesses. Id. The court finds that these requirements have
not been met since the EAJA order had not yet been issued at the time Plaintiff’s motion was filed.
Furthermore, the undersigned feels that the task of determining whether outstanding debts exist is
best left to the government. Accordingly, pursuant to Astrue, the EAJA award should be made
payable to Plaintiff. In keeping with the common practice of this court, the court directs the EAJA
award to be mailed to Plaintiff’s counsel.
Finally, counsel seeks reimbursement of $350.00 for filing expenses. ECF No. 11. The
Commissioner did not object to this reimbursement. ECF No. 12 at 6. Such expenses are
recoverable under the EAJA and the undersigned finds $350.00 to be a reasonable, allowable award.
See West Virginia University Hospitals v. Casey, 499 U.S. 83, 86-87 (1991) (28 U.S.C. § 1920
specifically lists filing fees as compensable costs).

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Based on the above, the court awards Plaintiff's attorney $350.00 in reimbursed filing
expenses with attorney fees under the EAJA for 27.00 attorney hours at an hourly rate of $173.00
per hour for work performed in 2009-2010, $174.00 per hour for work performed in 2011, and
$180.00 for work performed in 2012, for a total attorney's fee award of $5,054.40. 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 made payable directly to Plaintiff, but may be properly
mailed to Plaintiff’s attorney. 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.
IT IS SO ORDERED this 17th day of July 2012.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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