Jensen v. Social Security Administration Commissioner

Filing 18

ORDER on Attorney Fees in the amount of $2,627.60 plus $17.13 in expenses. 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 March 26, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

RICHARD A. JENSEN

v.

PLAINTIFF

CIVIL NO. 11-3006

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

ORDER ON MOTION FOR ATTORNEY’S FEES
Plaintiff, Richard A. Jensen, appealed the Commissioner’s denial of benefits to this court.
ECF No. 1. On November 2, 2011, a judgment was entered remanding Plaintiff’s case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF No. 14. Plaintiff now
moves for a total of $2648.29 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal
Access to Justice Act (“EAJA”), requesting compensation for 15.10 attorney hours at a rate of
$169.66 for work performed in 2010 and $175.50 for work performed in 2011 and 2012. ECF
Nos. 15, 16. Defendant filed a response objecting to the hourly rate requested for work
performed in 2011. ECF No. 17, at 2-3.
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, we find 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

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proceedings is a prevailing party.
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 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).

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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. § 2 412(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 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.
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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 $169.66 for work performed in 2010 and $175.50 for work
performed in 2011 and 2012. ECF No. 16, Ex. 2. He attached a summary of the CPI-South as
evidence of an increase in the cost of living. ECF No. 16, Ex. 4.
While an increased hourly rate is authorized as long as the CPI is submitted, this court will
not approve the hourly rate requested for 2011. 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)
Thus, counsel is entitled to his requested rate of $175.50 for work performed in 2012. However,
his requested rate of $175.50 for work performed in 2011 exceeds the maximum fee allowable
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and will be reduced to $174.00.
Attorney Hours
The court next addresses the number of hours Plaintiff’s counsel claims he spent working
on this case. Counsel requests a total of .30 hours for work performed in 2010, 13.80 hours of
work performed in 2011, and 1.00 hour of work performed in 2012. ECF No. 16, Ex. 3. The
court finds that counsel’s requested time is reasonable, and Defendant does not object. As such,
will award the full 15.10 hours. Accordingly, the court finds that counsel is entitled to .30 hours
at an hourly rate of $169.66 for work performed in 2010, 13.80 hours at an hourly rate of
$174.00 for work performed in 2011, and 1.00 hour at an hourly rate of $175.50 for work
performed in 2012.
Finally, counsel seeks reimbursement of $17.13 for expenses incurred with regard to
postage. ECF No. 15, at 1. Such expenses are recoverable under the EAJA and the undersigned
finds $17.13 to be a reasonable award. See Kelly v. Bowen, 862 F.2d 1333, 1335 (8th Cir. 1988).
Based on the above, the court awards Plaintiff's attorney fees under the EAJA for .30
hours at an hourly rate of $169.66 for work performed in 2010, 13.80 hours at an hourly rate of
$174.00 for work performed in 2011, and 1.00 hour at an hourly rate of $175.50 for work
performed in 2012, for a total attorney's fee award of $2627.60, plus $17.13 in expenses. 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.1 The parties are reminded that the award under

1

On June 14, 2010, the Supreme Court overturned Ratliff v. Astrue, 540 F.3d 800, 802 (8th Cir. 2008),
and held that an EAJA fee award is payable to the prevailing litigant, not the prevailing litigant’s attorney.
Astrue v. Ratliff, 130 S.Ct. 2521, 2252-2253 (2010). Therefore, any EAJA fee awarded by this court should be

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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 26th day of March 2012.

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

payable directly to Plaintiff, but may be properly mailed to Plaintiff’s attorney.

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