Dunlap v. Social Security Administration Commissioner
ORDER on Attorney Fees in favor of Tina D. Dunlap against Social Security Administration Commissioner in the amount of $1,385.25 with court costs in the amount of $25.61. 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 October 7, 2015. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TINA D. DUNLAP
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Tina D. Dunlap, appealed the Commissioner’s denial of benefits to the
Court. On June 3, 2015, a Judgment was entered remanding this matter to the Commissioner
pursuant to sentence four of 42 U.S.C. §405(g). (Doc. 16). Plaintiff now moves for an award
of $1,523.36 in attorney’s fees and costs under 28 U.S.C. §2412, the Equal Access to Justice
Act (hereinafter “EAJA”), requesting compensation for 7.80 attorney hours of work
performed before the Court in 2014 and 2015, at an hourly rate of $155.00 for both years,
and 3.85 paralegal hours of work performed in 2014 and 2015, at an hourly rate of $75.00.
Defendant filed a response to Plaintiff’s request, stating she had no objection to 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 sentence-four judgment reversing the Commissioner's denial of
benefits and remanding the case for further proceedings is a prevailing party.
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
time limitations imposed by the client or the circumstances;
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.
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 feeshifting 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, 461 U.S. at 433 (1983).
Plaintiff’s attorney requests an award under the EAJA at an hourly rate of $155.00 for
7.80 attorney hours in 2014 and 2015, and an hourly rate of $75.00 for 3.85 paralegal hours
which he asserts were devoted to the representation of Plaintiff in this Court. 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). 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
Plaintiff’s counsel submitted a CPI-Urban in support of his requested hourly rate.
Amended General Order 39 provides that the CPI-South index is to be used in computing
cost of living increases. The CPI-South index supports counsel’s requested hourly rate. 1
Accordingly, the Court finds that an award based upon an hourly rate of $155.00, reflecting
an increase in the cost of living, is appropriate in this instance. See Johnson, 919 F.2d at 505.
The Court will next address the number of hours requested by Plaintiff’s counsel:
Per Amended General Order 39, the allowable rate for each year is as follows, and for simplicity sake, the figure is
rounded to the nearest dollar:
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI -South) = $186.25 hour-$186.00
2015 - 228.451 x 125 divided by 152.4 (March 1996 CPI-South) = $187.38/hour - $187.00
Plaintiff’s attorney seeks the following paralegal time:
Receipt and review of file-marked copy of the summons
Letters to all the parties perfecting service of the summons
with attached complaint upon them
Preparation of the Affidavit of Service with exhibits.
Filed with the court.
These tasks are clerical in nature and cannot be compensated under the EAJA. Granville
House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir. 1987)(work which could
have been completed by support staff is not compensable under the EAJA). Therefore, the
Court will deduct 1.5 hours from the paralegal hours for 2014.
Plaintiff’s attorney seeks $25.61 for certified letters. Postage fees are not classified as
costs under §1920, and are, therefore, recoverable under the EAJA as expenses.
Accordingly, the Court finds that $25.61 is recoverable as an expense.
Based upon the foregoing, the Court finds that Plaintiff’s counsel should be awarded
an attorney’s fee under the EAJA for: 7.8 attorney hours for work performed in 2014 and
2015 at an hourly rate of $155.00 and 2.35 paralegal hours (3.85 hours less 1.5 hours) at an
hourly rate of $75.00, plus $25.61 in expenses, for a total attorney’s fee award of
$1,385.25, plus $25.61 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. Based upon the
holding in Astrue v. Ratliff, 130 S.Ct. 2521 (2010), the EAJA award should be paid directly
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.
DATED this 7th day of October, 2015.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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