Vickers v. Social Security Administration Commissioner

Filing 12

JUDGMENT re 10 Motion for Attorney Fees, finding that counsel is entitled to compensation under the EAJA in the amount of $2,953.50. Signed by Honorable Erin L. Setser on May 26, 2011. (cap)

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

JOHN WILLIAM VICKERS

v.

PLAINTIFF

Civil No. 09-4104

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

ORDER
Plaintiff, John William Vickers, appealed the Commissioner's denial of benefits to this
Court. On November 23, 2010, judgment was entered remanding Plaintiff's case to the
Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 9). Plaintiff now moves
for an award of $3,415.50 in attorney's fees and expenses under 28 U.S.C. § 2412, the Equal
Access to Justice Act (hereinafter "EAJA"), requesting compensation for 20.70 hours of work
before the Court at an hourly rate of $165.00. (Docs. 10). Defendant filed a response, expressing
no objection to the award but argued that any award granted should be paid to Plaintiff. (Doc.
11).
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

AO72A
(Rev. 8/82)

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 contingent; time
limitations imposed by the client or the circumstances; the amount 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. Pierce v. 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 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, 461 U.S. at 433 (1983).
-2-

AO72A
(Rev. 8/82)

Plaintiff’s attorney requests an award under the EAJA at an hourly rate of $165.00 for
time spent in 2009 and 2010, for a total of 20.70 hours, which he asserts he 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. Id., 461 U.S. at 437. 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. 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
[the maximum statutory hourly rate],” such as a copy of the Consumer Price Index (CPI).
Plaintiff’s counsel submitted a CPI in support of his requested hourly rate. The Court finds that
an award based upon an hourly rate of $165.00 per hour, reflecting an increase in the cost of
living, is appropriate in this instance. See Johnson, 919 F.2d at 505. Thus, based upon the above
factors, the Court finds that an appropriate hourly rate is $165.00 for attorney work.
We next address the number of hours Plaintiff's counsel claims he spent working on this
case. Plaintiff’s counsel seeks 0.20 hour on October 6, 2009 (reviewed the file, letter to the
Clerk’s office), from which we deduct 0.12 hour; and 0.50 hour on October 22, 2009 (reviewed
the file, completed on-line confirmation regarding summonses and confirmation of service), from
which we deduct 0.33 hour. This time is not compensable, in full, under the EAJA. Granville
House, Inc. v. Department of HEW, 813 F.2d 881, 884 (8th Cir.1987) (work which could have
-3-

AO72A
(Rev. 8/82)

been completed by support staff is not compensable under the EAJA). Accordingly, 0.45 hour
must be deducted from the total compensable time sought by counsel.
Plaintiff’s counsel seeks 0.20 hour on December 8, 2009 (received and reviewed court’s
scheduling order), from which we deduct 0.15 hour, as it should not have taken an attorney
experienced in handling social security cases more than a few minutes to review this document.
Bowman v. Secretary of H.H.S., 744 F.Supp 898 (E.D.Ark. 1989). On December 8, 2009,
Plaintiff’s counsel also seeks 0.20 hour to review the file. As Plaintiff’s counsel reviewed the
file the previous day and no action other than the scheduling order had been taken in this case
we find this time to be excessive. Accordingly, 0.35 hour must be deducted from the total
compensable time sought by counsel.
Plaintiff’s counsel seeks a total of 14.00 hours for reviewing the transcript and
researching and writing Plaintiff’s appeal brief. The Court notes there were no unique or
complex issues to be developed in this particular case. Plaintiff’s counsel frequently represents
social security plaintiffs before this Court and should be well versed in social security law and
we find the time submitted for preparing this brief to be excessive. Therefore we are reducing
the number of hours submitted for the preparation of Plaintiff’s brief to 12.00 hours.
In his response, Defendant asks the Court to designate Plaintiff as payee of the EAJA
award, and not Plaintiff’s counsel. Based upon the holding in Astrue v. Ratliff, 130 S.Ct. 2521
(2010), the EAJA award should be paid directly to Plaintiff.
Accordingly, we find that counsel is entitled to compensation under the EAJA for: 17.90
(20.70-2.80) hours for attorney’s fees, at the rate of $165.00 per hour, for a total attorney's fee
award of $2,953.50. This amount should be paid in addition to, and not out of, any past due
-4-

AO72A
(Rev. 8/82)

benefits which Plaintiff may be awarded in the future.
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.
IT IS SO ORDERED this 26th day of May 2011.

/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
.

-5-

AO72A
(Rev. 8/82)