Clements v. Social Security Administration Commissioner

Filing 11

ORDER on Attorney Fees adopting 9 Report and Recommendations granting 7 Motion for Attorney Fees in the amount of $2656.50 under EAJA. Signed by Honorable Harry F. Barnes on December 1, 2009. (cnn) Modified on 12/2/2009 to edit text (lw).

IN THE UNITED STATES DISTRICT COURT W E S T E R N DISTRICT OF ARKANSAS T E X A R K A N A DIVISION

H O LLY ANGEL CLEMENTS

P LA IN T IF F

VS.

C A S E NO. 08-CV-4078

M IC H A E L J. ASTRUE, Commissioner Social Security Administration

DEFENDANT

ORDER B efo re the Court is the Report and Recommendation filed on November 9, 2009, by the H o n o rab le James R. Marschewski, United States Magistrate Judge for the Western District of A rk an sas. (Doc. No. 9). Judge Marschewski recommends that Plaintiff's Application for Attorney F ees Under the Equal Access to Justice Act ("EAJA") be granted in part and denied in part. In his rep o rt, Judge Marschewski finds that Plaintiff is entitled to attorney's fees under the EAJA for 16.1 atto rn ey hours at the rate of $165.00 per hour, for a total attorney's fee award of $2,656.50. The P lain tiff has objected to the Magistrate's finding and recommendation. O n September 5, 2008, Plaintiff Holly Angel Clements appealed to this Court the decision o f the Commissioner of the Social Security Administration's ("SSA") denying her claims for a p erio d of disability, disability insurance benefits ("DIB") and supplemental security income (" S S I" ). On August 28, 2009, the Court reversed and remanded the case to the Commissioner for fu rth er consideration pursuant to Sentence 4 of 42 U.S.C. § 405 (g). On October 15, 2009, P lain tiff filed a motion for attorney's fees under the EAJA requesting $3,135.00 in attorney's fees fo r 19 attorney hours at an hourly rate of $165.00 per hour. (Doc. No. 7). The Defendant resp o n d ed to the motion and did not object to the Plaintiff's fee request. (Doc. No. 8). Upon review, Judge Marsschewski found that the Plaintiff's counsel was entitled to an

hourly rate of $165.00 per hour for work performed on behalf of the Plaintiff in this case. However, he found the number of hours (19.0 hours ) requested by counsel to be excessive. Thus, th e total number of compensable hours was reduced to 16.1 attorney hours. Plaintiff objects to this red u ctio n arguing that the number of hours requested is reasonable. In support, Plaintiff points to th e fact that the government did not oppose the requested fee. It is the duty of the district court to determine the reasonableness and accuracy of a fee req u est under the EAJA, even in the absence of an objection by the Commissioner. See Decker v. S u lliva n , 976 F.2d 456, 459 (8th Cir. 1992). In making this determination, the court should consider the attorney's experience, ability, and reputation; the benefits resulting to the client from th e services; the customary fee for similar services; the contingency or certainty of compensation; th e results obtained; and the amount involved. Allen v. Heckler, 588 F.Supp 1247 (W.D.N.Y. 1984). Applying the above factors to this case, Judge Marschewski determined that 16.1 attorney h o u rs was reasonable for the work performed on Plaintiff's behalf in this matter. Therefore, an atto rn ey's fee of $2,656.50 is reasonable in this case. The Court agrees and adopts the Magistrate Ju d ge's Report and Recommendation in toto. Accordingly, the Court finds that Plaintiff's attorney is entitled to compensation under the E A JA in the amount of $2,656.50, which is a total of 16.1 attorney hours at a rate of $165.00 per h o u r. This amount should be paid in addition to, and not out of, any past due benefits which P lain tiff may be awarded in the future. Further, this award should be paid directly to Plaintiff's co u n sel. Ratliff v. Astrue, 540 F.3d 800, 802 (8th Cir. 2008). IT IS SO ORDERED, this 1st day of December, 2009. /s/Harry F. Barnes Hon. Harry F. Barnes U n ited States District Judge