Durkin v. Social Security Administration Commissioner

Filing 20

Order on 16 Motion for Attorneys Fees and in favor of Mary Elizabeth Durkin against Social Security Administration Commissioner in the amount of $3,879.30 with court costs in the amount of $25.64. 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 March 5, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
MARY ELIZABETH DURKIN
V.

PLAINTIFF
NO. 13-5120

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration

DEFENDANT

ORDER
Plaintiff, Mary Elizabeth Durkin, appealed the Commissioner’s denial of benefits to this
Court. On June 17, 2014, a Judgment was entered remanding this matter to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 15). Plaintiff now moves for an award
of $4,163.14 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice
Act (hereinafter “EAJA”), requesting compensation for 21.25 attorney hours of work performed
before the Court in 2013 and 2014, at an hourly rate of $185.00, and 2.75 paralegal hours for
work performed in 2013 and 2014, at an hourly rate of $75.00. Defendant filed objections to
Plaintiff’s request, arguing that Plaintiff is not entitled to EAJA fees because Defendant’s
position was substantially justified.
In the Memorandum Opinion entered by the undersigned on June 17, 2014, this matter
was remanded because the Court believed the opinion of the surgeon who performed surgery on
Plaintiff in February of 2011, Dr. Lawrence G. Lenke, was necessary in order for the Court to
understand what impact Plaintiff’s condition had upon her ability to perform work-related
activities after her February surgery. (Doc. 14). The Court remanded the matter to allow the ALJ
to obtain a Physical RFC Assessment from the surgeon who operated on Plaintiff in 2011, or to

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submit interrogatories to him. In the opinion, the Court asked the attorneys for Plaintiff and
Defendant to address the question of whether fees were appropriate under the facts of this case,
“as Plaintiff was asked to submit the records in question by the ALJ and failed to do so.” (Doc.
14 at p. 7). The Court noted that at the administrative hearing held before the ALJ, Plaintiff’s
attorney asked the ALJ to leave the record open in order for her to provide the records relating
to the February 2011 surgery, and failed to provide such records, even though he left the record
open for 90 days after the hearing. Therefore, the ALJ issued his decision without the benefit
of the 2011 surgery records from Dr. Lenke.
The government bears the burden of proving its position was substantially justified at all
times. Goad v. Barnhart, 398 F.3d 1021, 1025 (8th Cir. 2005). “[T] Commissioner can advance
a losing position in the district court and still avoid the imposition of a fee award as long as the
Commissioner’s position had a reasonable basis in law and fact,” and a “loss on the merits by
the Commissioner does not give rise to a presumption that she lacked substantial justification
for her position.” Id. “Courts vary in how they characterize the ‘position’ of the government
under the EAJA, with some focusing on the issue that led to remand and others taking a more
holistic view of the government’s case.” Bales v. Colvin, No. CIV. 13-4021, 2014 WL 5422175
at *3 (D.S.D., Oct. 22, 2014). The Court in Bales opined that it appeared that the Eighth Circuit
Court of Appeals takes a holistic approach when determining whether the government’s position
was substantially justified. Id. “Yet even those courts that take a holistic approach will award
attorney’s fees when the government takes a substantially unjustified position on a significant
issue that affects the entirety of the case.” Id.
Taking a holistic approach to the government’s position in this case leads the Court to

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conclude that the government’s position was not substantially justified. Subsequent to the
February 2011 surgery, Plaintiff was seen from May 2011 to October 2011 at Mercy Physician’s
Plaza and Ozark Orthopaedic and Sports Medicine Clinic, Ltd., and reported arm and leg pain,
a stiff back, and lumbago. Without the records relating to the surgery, or a Physical RFC
Assessment from Dr. Lenke or another examining physician, the Court does not believe there
was sufficient evidence in the record for the ALJ to determine Plaintiff’s ability to function in
the workplace.
Although the Court believes Plaintiff’s counsel could have been more diligent in
attempting to obtain the records at issue, the Court does not believe the government was justified
in determining Plaintiff was not disabled, based upon consideration of the evidence as a whole.
Accordingly, the Court will proceed with the determination of the amount of attorney’s
fees to which Plaintiff’s counsel is entitled.
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

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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).
Plaintiff's attorney requests an award under the EAJA at an hourly rate of $185.00 for
21.25 attorney hours in 2013 and 2014, and an hourly rate of $75.00 for 2.75 paralegal hours
which she 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 (CPI). Plaintiff’s counsel submitted a CPI-

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South urban, which supports an award based upon an hourly rate of $183.00 in 2013 and
$185.00 in 2014.1 See Johnson, 919 F.2d at 505.
The Court will next address the number of hours requested by Plaintiff’s counsel.
Plaintiff’s attorney seeks reimbursement for the following activities performed in 2013:
7/19/13

7/19/13

(Attorney hours) Review and sign Summonses
and service letters to be sent to Defendants.

0.50

(Paralegal hours) Prepare and send summonses
and service Letters to US office of General Counsel,
US Department of Justice, and US Attorney by
Certified mail return receipt requested delivery
To postal service (Paralegal hours)

1.00

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 .50 hours from the attorney hours for 2013 and 1.00 hour from the 2013 paralegal hours.
Plaintiff’s attorney seeks reimbursement for 1.75 hours of paralegal time spent preparing
and finalization of the EAJA fee request in 2014. The Court believes that the time claimed for
preparing what appears to be the standard fee petition and brief submitted by Plaintiff’s counsel
in social security cases is excessive. The Court will deduct .75 hours from the paralegal time
claimed.
Plaintiff’s attorney seeks $25.64 for certified mail receipts. Postage fees are not
classified as costs under § 1920, and are, therefore, recoverable under the EAJA as expenses.

1

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:
2013 - 223.109 x 125 divided by 152.4 (March 1996 CPI -South) = $182.99/hour-$183.00
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI -South) = $186.25 hour-$186.00

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Accordingly, the Court finds that $25.64 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: 18.4 attorney hours ( 18.9 attorney hours less .50 hours) for
work performed in 2013 at an hourly rate of $183.00 and 2.35 attorney hours for work performed
in 2014 at an hourly rate of $185.00; 1 paralegal hour (2.75 hours less 1.75 hours) at an hourly
rate of $75.00, plus $25.64 in expenses, for a total attorney’s fee award of $3,879.30, plus
$25.64 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 to Plaintiff.
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 5th day of March, 2015.

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

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