Lowman v. Social Security Administration Commissioner

Filing 18

ORDER granting plaintiff's 14 Motion for attorney's fees in the amount of $4069.80. Signed by Honorable Barry A. Bryant on October 3, 2012. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MICHAEL W. LOWMAN
vs.

PLAINTIFF
Civil No. 2:11-cv-02166

MICHAEL J. ASTRUE
Commissioner, Social Security Administration

DEFENDANT

ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal
Access to Justice Act (“EAJA”). ECF No. 14. Defendant has responded to this Motion, and
Defendant claims Plaintiff’s fee request should be reduced. ECF No. 17. The Parties have
consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case,
including conducting the trial, ordering the entry of a final judgment, and conducting all postjudgment proceedings. ECF No. 7. Pursuant to this authority, the Court issues this Order.
1.

Background:
Michael W. Lowman (“Plaintiff”) appealed to this Court from the Secretary of the Social

Security Administration’s (“SSA”) denial of his request for disability benefits. ECF No. 1. On July
16, 2012, Plaintiff’s case was reversed and remanded pursuant to sentence four of 42 U.S.C. §
405(g). ECF Nos. 12-13.
On September 20, 2012, Plaintiff filed the present Motion requesting an award of attorney’s
fees under EAJA. ECF No. 14. With this Motion, Plaintiff requests an award of attorney’s fees of
$4,137.30, representing 21.45 hours of attorney work at an hourly rate of $174.00 and 5.40 hours of
paralegal work at an hourly rate of $75.00. ECF No. 15-2. Defendant responded to this Motion on
October 2, 2012, and Defendant objects to Plaintiff’s requested fees. ECF No. 17.

2.

Applicable Law:
Pursuant to the EAJA, 28 U.S.C. § 2412(d)(1)(A), a court must award attorney's fees to a

prevailing social security claimant unless the Secretary’s position in denying benefits was
substantially justified. The Secretary has the burden of proving that the denial of benefits was
substantially justified. See Jackson v. Bowen, 807 F.2d 127, 128 (8th Cir.1986) (“The Secretary
bears the burden of proving that its position in the administrative and judicial proceedings below was
substantially justified”). An EAJA application also must be made within thirty days of a final
judgment in an action, See 28 U.S.C. § 2412(d)(1)(B), or within thirty days after the sixty day time
for appeal has expired. See Shalala v. Schaefer, 509 U.S. 292, 298 (1993).
An award of attorney’s fees under the EAJA is appropriate even though, at the conclusion
of the case, the plaintiff’s attorney may be authorized to charge and to 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. See Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002) (citing Pub. L. No. 99-80, 99 Stat. 186 (1985)). The United States Supreme
Court stated that Congress harmonized an award of attorney’s fees under the EAJA and under 42
U.S.C. § 406(b)(1) as follows:
Fee awards may be made under both prescriptions [EAJA and 42 U.S.C. §
406(b)(1)], but the claimant’s attorney must “refun[d] to the claimant the amount of
the smaller fee.”. . .“Thus, an EAJA award offsets an award under Section 406(b),
so that the [amount of total past-due benefits the claimant actually receives] will be
increased by the . . . EAJA award up to the point the claimant receives 100 percent
of the past-due benefits.”
Id. 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

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unreasonable government action. See id.; Cornella v. Schweiker, 728 F.2d 978, 986 (8th Cir. 1984).
The statutory ceiling for an EAJA fee award is $125.00 per hour. See 28 U.S.C. §
2412(d)(2)(A). A court is only authorized to exceed this statutory rate if “the court determines that
an increase in the cost of living or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee.” Id. A court may determine that there
has been an increase in the cost of living, and may thereby increase the attorney’s rate per hour,
based upon the United States Department of Labor’s Consumer Price Index (“CPI”). See Johnson
v. Sullivan, 919 F.2d 503, 504 (8th Cir. 1990). See also General Order 39 (“Attorney’s Fees Under
the Equal Access to Justice Act”).
3.

Discussion:
In the present action, Plaintiff’s case was remanded to the SSA. ECF Nos. 12-13. Defendant

does not contest Plaintiff’s claim that he is the prevailing party and does not oppose his application
for fees under the EAJA. ECF No. 147 The Court construes the lack of opposition to this
application as an admission that the government’s decision to deny benefits was not “substantially
justified” and that Plaintiff is the prevailing party.
Plaintiff requests a total award of $4,137.30, representing 21.45 hours of attorney work at
an hourly rate of $174.00 and 5.40 hours of paralegal work at an hourly rate of $75.00. ECF No. 152. Defendant does not object to Plaintiff’s requested hourly rate for attorney and paralegal work.
ECF No. 17. Plaintiff’s requested hourly rates are authorized by the EAJA as long as the CPI-South
Index justifies the enhanced rate. See General Order 39. See also 28 U.S.C. § 2412(d)(2)(A);
Johnson, 919 F.2d at 504. In the present action, Plaintiff has requested $174.00 per hour for the
work performed in 2011 and 2012. Based upon the CPI-South Index, this hourly rate is authorized
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and is consistent with EAJA. Thus, this Court awards Plaintiff the hourly rate of $174.00 per hour
for work performed in 2011. Defendant also does not object to Plaintiff’s requested paralegal fee
rate. ECF No. 17. Accordingly, this Court awards Plaintiff the paralegal fee rate of $75.00 per hour.
Further, Plaintiff has requested 21.45 hours of attorney work and 5.40 hours of paralegal
work for performed in 2011 and 2012. ECF No. 15-1. Plaintiff has submitted an itemized bill in
support of that request. Id. Defendant objects to 0.90 hour of the paralegal fees as being purely
clerical in nature. ECF No. 17. Those entries include the following: paralegal filed brief using
CM/ECF (0.50 hour), paralegal mailed copy of brief to Plaintiff (0.30 hour), and paralegal mailed
copy of opinion and judgment to Plaintiff (0.10 hour). ECF No. 15-1. Under Eighth Circuit
precedent, work that could have been completed by support staff is not compensable under the
EAJA. See Granville House Inc. v. Dep’t of HEW, 813 F.2d 881, 884 (8th Cir. 1987). Based upon
Granville, this Court finds Plaintiff’s requested paralegal work is also not compensable, and his total
fee request should be reduced by 0.90 hours of paralegal work. After that reduction, Plaintiff’s total
fee award should be $4,069.80 (21.45 hours of attorney work at an hourly rate of $174.00 and 4.5
hours of paralegal work at an hourly rate of $75.00).
Defendant claims the fees awarded should be paid directly to Plaintiff pursuant to Ratliff.
ECF No. 17. Ratliff requires that attorney’s fees be awarded to the “prevailing party” or the litigant.
See Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010). Thus, these fees must be awarded to Plaintiff,
not to Plaintiff’s attorney. However, if Plaintiff has executed a valid assignment to Plaintiff’s
attorney 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 directly to Plaintiff’s attorney.

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4.

Conclusion:
Based upon the foregoing, the Court awards Plaintiff $4,069.80 in attorney’s fees pursuant

to the EAJA, 28 U.S.C. § 2412.
ENTERED this 3rd day of October 2012.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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