Shelton v. Social Security Administration Commissioner
Filing
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MEMORANDUM OPINION AND ORDER granting 15 Motion for Attorney Fees. Plaintiff is awarded Attorney Fees in the amount of $6,999.50. 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 Mark E. Ford on June 8, 2016. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CYNTHIA L. SHELTON
v.
PLAINTIFF
CIVIL NO. 2:14-cv-2198-MEF
CAROLYN W. COLVIN, Commissioner
Social Security Administration
DEFENDANT
MEMORANDUM OPINION AND ORDER
Pending now before this Court is Plaintiff’s Motion for Attorney Fees Under the Equal
Access to Justice Act (“EAJA”). (ECF Nos. 14, 15, 17) The matter is before the undersigned by
consent of the parties.
I.
Background:
On March 14, 2016, 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 $7,101.80, representing
a total of 7.95 attorney hours for work performed in 2014 at an hourly rate of $186.00, 26.30
attorney hours for work performed in 2015 at a rate of $187.00, and 3.75 attorney hours for work
performed in 2016 at an hourly rate of $188.00. (ECF No. 15-1) On January 27, 2016, the
Commissioner filed a response voicing no objection to the hourly rate sought, but objecting to the
number of hours Plaintiff’s counsel is requesting. (ECF No. 17) The Plaintiff filed a reply on
February 16, 2016, contending the fee requested is reasonable and compensable under the EAJA.
(ECF No. 18)
II.
Applicable Law:
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 sentence-four judgment
reversing the Commissioner’s denial of benefits and remanding the case for further proceedings is
a prevailing party.
The EAJA 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).
The EAJA is not, however, designed to reimburse without limit. Pierce v. Underwood, 487
U.S. 552, 573 (1988). 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 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. Hensley
v. Eckerhart, 461 U.S. 424, 430 (1983). Further, 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.”).
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As a general rule, 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 attorney’s justifies a higher
fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase the hourly rate is not automatic, though,
and remains at the discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074 (8th Cir.
1989). In Sanders v. Astrue, 2012 WL 19422 (W.D. Ark. Jan 3, 2012), this Court decided to follow
the approach set forth in Knudsen v. Barnhart, 360 F. Supp. 2d 963, 969-974 (N.D. Iowa 2004),
wherein the Court found that “a reasonable balance between accuracy and ease of computation
would be to require attorneys to adjust fees using the CPI available and applicable to the year when
services were performed.” Id. at 974. In this case, we find that an increase in the cost of living
justifies a higher fee. Accordingly, the Plaintiff is entitled to receive the hourly rates requested for
the years in question.
III.
Discussion:
In the present action, Plaintiff’s case was remanded by this Court pursuant to sentence four
of 42 U.S.C. § 405(g). The Commissioner does not contest Plaintiff’s claim that she is the
prevailing party and does not oppose her application for fees under the EAJA. (ECF No. 16) The
Court construes this 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
and entitled to receive an award under the EAJA.
A.
Clerical Tasks:
The Commissioner objects to a total of 1.25 attorney hours, arguing that the tasks
performed were clerical in nature and did not require any legal expertise. We are governed by
Granville House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987), which held that
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work which could have been completed by support staff is not compensable under the EAJA. This
case asserts that it is the task, rather than the title of the individual performing the task, that
determines whether or not the task is clerical.
After reviewing counsel’s itemization of time and the Defendant’s objections, the
undersigned finds that the following tasks are purely clerical in nature and not compensable under
EAJA: a telephone call from the client rescheduling her appointment, receiving and reviewing
proof of service (green cards), and receiving and reviewing the NEFs confirming filing of service
of process. Counsel is, however, awarded the full .15 attorney hours requested for the preparation
and execution of the affidavits of service. We find this time to be adequate to compensate counsel
for all legal tasks associated with perfecting service.
Accordingly, Plaintiff is awarded .75 attorney hours for performing these tasks, reducing
her fee request by .55 hours.
B.
EAJA Motion:
The Commissioner also contends that the 3.00 hours Plaintiff requests in compensation for
the preparation of the Motion for EAJA fees and its supporting documentation is excessive. The
undersigned finds that 3.00 hours is a reasonable amount of time for the preparation of these
documents. Accordingly, the Plaintiff will be awarded the full time requested for the completion
of this task.
C.
Payment of EAJA fees:
Pursuant to Astrue v. Ratliff, 130 S.Ct. 2521, 2528 (2010), the EAJA award should be made
payable to Plaintiff. In keeping with the common practice of this Court, we will direct that the
EAJA award be mailed to Plaintiff’s counsel.
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IV.
Conclusion:
Based upon the foregoing, the undersigned awards the Plaintiff attorney fees under the
EAJA in the amount of $6,999.50 for 7.40 attorney hours performed in 2014 at an hourly rate of
$186.00, 26.30 attorney hours in 2015 at a rate of $187.00 per hour, and 3.75 attorney hours in
2016 at an hourly rate of $188.00. 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 further reminded that, in order to prevent double recovery by counsel for
the Plaintiff, 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.
Dated this 8th day of June, 2016.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
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