Elkins v. Social Security Administration Commissioner

Filing 22

MEMORANDUM OPINION AND ORDER on Attorney Fees in the amount of $5,179.45. Signed by Honorable Mark E. Ford on April 3, 2017. (lw)

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

DANA L. ELKINS

PLAINTIFF

v.

CIVIL NO. 2:15-cv-02120-MEF

NANCY A. BERRYHILL, 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. 18, 19. The matter is before the undersigned by consent
of the parties. ECF No. 8.
I.

Background:
On December 6, 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 $5,348.15, representing
a total of 19.25 attorney hours for work performed in 2015 at an hourly rate of $187.00 per hour
and 9.30 attorney hours in 2016 at an hourly rate of $188.00. ECF No. 18-1. On December 8, 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. 20. The Plaintiff filed a reply on
January 8, 2017, contending the fee requested is reasonable and compensable under the EAJA.
ECF No. 21.
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

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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 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.
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). ECF No. 16. 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. 20.
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.

Excessive Time:

The Commissioner contends that the time requested for instructing the paralegal with
regard to filing a continuance, drafting the motion for continuance, and reviewing the text only
order granting the motion to continue and instructing the paralegal is excessive and should be
reduced. We agree.

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The Court finds that the Plaintiff’s counsel is entitled to no more than nominal time for
preparing the motion for continuance and reviewing the order granting same. Accordingly,
Plaintiff’s fee will be reduced by .35 attorney hours.
B.

Clerical Tasks:

The Commissioner also objects to a total of .55 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
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: receiving and reviewing NEFs and/or other documents confirming the filing of documents
and the service of process and forwarding same to staff. Plaintiff will, however, be awarded
nominal time for the attorneys signature on the Consent to Magistrate form. Accordingly,
Plaintiff’s award will be reduced by a total of .50 attorney hours.
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.
IV.

Conclusion:
Based upon the foregoing, the undersigned awards the Plaintiff attorney fees under the

EAJA in the amount of $5,179.45 for 18.75 attorney hours performed in 2015 at a rate of $187.00

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per hour, and 8.90 attorney hours performed in 2016 at a rate of $188.00 per hour. 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 3rd day of April, 2017.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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