Ivy v. Social Security Administration Commissioner
JUDGMENT on Attorney Fees in favor of Shannon Ivy against Social Security Administration Commissioner in the amount of $2,713.20 with court costs in the amount of $30.63. 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 12, 2015. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
SHANNON L. IVY
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security Administration
Plaintiff, Shannon L. Ivy, appealed the Commissioner’s denial of benefits to this Court.
On September 29, 2014, 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 $2,789.20 in attorney’s fees and costs under 28 U.S.C. § 2412, the Equal Access to Justice
Act ( hereinafter “EAJA”), requesting compensation for 18.35 attorney hours of work performed
before the Court in 2013 and 2014, at an hourly rate of $152.00. Plaintiff also seeks $30.63 for
postage. (Doc. 17-1). Defendant has filed a response, stating that she has no objection to
Plaintiff’s motion, except with regard to the request to award the EAJA directly to Plaintiff’s’
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
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
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 $152.00 for
18.35 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 (CPI). 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
Court finds that the CPI -South index supports an award based upon an hourly rate of $152.00.1
See Johnson, 919 F.2d at 505.
The Court will next address the number of hours Plaintiff’s counsel has alleged he spent
in this matter.
Plaintiff’s counsel seeks reimbursement for the following:
Prepare Summons, Letter to clerk filing Summons
This task is clerical in nature and cannot be compensated under the EAJA. Granville House, Inc.
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
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). The Court will therefore
deduct .50 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.
Based upon the foregoing, the Court finds that Plaintiff ‘s counsel should be awarded an
attorney’s fee under the EAJA for: 17.85 attorney hours (18.35 less .50) for work performed in
2013 and 2014, at an hourly rate of $152.00, for a total attorney’s fee award of $2,713.20, plus
$30.63 in postage 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.
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 12th day of March, 2015.
/s/ Erin L. Setser
HONORABLE ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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