Daves v. Social Security Administration Commissioner

Filing 20

ORDER that plaintiff's counsel should be awarded an attorney's under the EAJA in the amount of $2,959.50. 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, any EAJA award by this Court should be made payable to plaintiff and not counsel. Signed by Honorable Erin L. Setser on August 21, 2014. (rw)

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

BRENDA D. DAVES

v.

PLAINTIFF

CIVIL NO. 13-2155

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

ORDER
Plaintiff, Brenda D. Daves, appealed the Commissioner's denial of benefits to this Court.
On May 29, 2014, judgment was entered remanding Plaintiff's case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 16). Plaintiff now moves for an award
of $3,124.60 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice Act
(hereinafter “EAJA”), requesting compensation for 15.50 attorney hours of work before the
Court at an hourly rate of $174.00 for work performed in 2013 and 2014, and 5.70 paralegal
hours of work before the Court at an hourly rate of $75.00. (Docs. 17-18). Defendant filed a
response to Plaintiff’s application, stating that she does not oppose an award to Plaintiff in the
amount requested. (Doc. 19).
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).
Under Shalala v. Schaefer, 509 U.S. 292, 302 (1993), a social security claimant who obtains a

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sentence-four judgment reversing the Commissioner’s denial of benefits and remanding the case
for further proceedings is a prevailing party. After reviewing the file, the Court finds that
Plaintiff is a prevailing party in this matter.
In determining a reasonable attorney’s fee, the Court will in each case consider the
following factors: time and labor required; the novelty and difficulty of questions involved; the
skill required to handle the problems presented; the preclusion of employment by the attorney
due to acceptance of the case; the customary fee; whether the fee is fixed or contingent; time
limitations imposed by the client or the circumstances; the amount involved and the results
obtained; the attorney’s experience, reputation and ability; the “undesirability” of the case; the
nature and length of the professional relationship with the client; and awards in similar cases.
Hensley v. Eckerhart, 461 U.S. 424, 430 (1983).
However, the EAJA is not designed to reimburse without limit. Pierce v. Underwood,
487 U.S. 552, 573 (1988). The Court can determine the reasonableness and accuracy of a fee
request, even in the absence of an objection by the Commissioner. Clements v. Astrue, 2009 WL
4508480 (W.D. Ark. Dec. 1, 2009); see also 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 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
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the work.”

Id.

Where documentation is inadequate, the Court may reduce the award

accordingly. Hensley, 461 U.S. at 433 (1983).
Plaintiff’s attorney requests an award under the EAJA for 15.50 hours of attorney work
performed in 2013, and 2014, at an hourly rate of $174.00. The party seeking attorney fees bears
the burden of proving that the claimed fees are reasonable. Hensley, 461 U.S. at 437. Attorney
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 [the maximum statutory hourly rate],” such as a copy of the Consumer Price
Index (CPI). Plaintiff’s counsel submitted a CPI in support of his requested hourly rate.
Therefore, the undersigned believes his argument for enhanced fees based on a cost of living
increase has merit, and will award the requested hourly rate of $174.00.1
Plaintiff’s counsel has also requested 5.70 paralegal hours of work at the rate of $75.00
per hour. The Court finds $75.00 per hour for paralegal work to be reasonable.

1

Per General Order 39, the allowable rate for each year is a follows, and for simplicity sake, the figure is rounded
to the nearest dollar:
2013 - 223.109 x 125 divided by 152.4 (March 1996 CPI -South)=$182.99/hour-$183.00.
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI -South) = $186.25/hour- 186.00.

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The Court next addresses the number of hours Plaintiff's counsel claims he spent working
on this case. Plaintiff’s counsel seeks the following hours as paralegal work:

06/19/13 Paralegal/Plaintiff letter re: verified that court action been filed, .20,
06/20/13 Paralegal completed service of summons made upon Defendant and
mailed by certified mail, 0.50 hour,
07/02/13 Paralegal prepared and scanned Affidavit of Service to Clerk, Office of
General Counsel, Attorney General of U.S., U.S. Attorney, 0.50 hour,
09/18/13 Paralegal filed brief using CM/ECF, 0.50 hour,
09/18/13 Paralegal/Plaintiff letter with copy of brief, 0.20 hour, and
05/29/14 Paralegal/Plaintiff letter re: copy of Magistrate’s decision, 0.30 hour.

The Court finds this work is clerical in nature and will therefore be deducted. See Missouri v.
Jenkins by Agyei, 491 U.S. 274, 288 (1989)(Paralegal work is work that might otherwise be
performed by a lawyer, such as factual investigation, including locating and interviewing
witnesses; assistance with depositions, interrogatories, and document production; compilation
of statistical and financial data; checking legal citations; and drafting correspondence. Purely
clerical or secretarial tasks should not be billed at a paralegal rate); Miller v. Alamo, 983 F.2d
856, 862 (8th Cir. 1993)(Work done by paralegals is compensable if it is work that would have
been done by an attorney, such as going to the library to locate cases and preparing materials
used by an attorney at oral argument). Accordingly, the Court deducts 2.20 paralegal hours from
the total number of compensable hours sought.

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In her response, Defendant asks the Court to designate Plaintiff as payee of the EAJA
award, and not Plaintiff’s counsel. Based upon the holding in Astrue v. Ratliff, 130 S. Ct. 2521
(2010), the EAJA award should be paid directly to Plaintiff.
Based upon the foregoing, the Court finds that Plaintiff’s counsel should be awarded an
attorney’s fee under the EAJA for: 15.50 attorney hours at a rate of $174.00 per hour for work
performed in 2013 and 2014, and 3.50 (5.70- 2.20) paralegal hours at a rate of $75.00 per hour,
for a total attorney’s fee award of $2,959.50. This amount should be paid in addition to, and not
out of, any past due benefits which Plaintiff may be awarded in the future.
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.
IT IS SO ORDERED this 21st day of August, 2014.

/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE

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