Fisk v. Social Security Administration Commissioner

Filing 20

ORDER granting 16 Motion for Attorney Fees, in favor of Joshua M. Fisk against Social Security Administration Commissioner in the amount of $6,367.65. Signed by Honorable Erin L. Setser on March 27, 2015. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JOSHUA M. FISK
V.

PLAINTIFF
NO. 13-5274

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

DEFENDANT

ORDER
Plaintiff, Joshua M. Fisk, appealed the Commissioner’s denial of benefits to this Court.
On December 11, 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 $7,385.20 in attorney’s fees under 28 U.S.C. § 2412, the Equal Access to Justice Act
(hereinafter “EAJA”), requesting compensation for 7.22 hours of work performed before the
Court in 2013 and for 32.60 hours of work performed before the Court in 2014, at an hourly rate
of $183.00 for 2013 and $186.00 for 2014. (Doc. 16-1). Defendant has filed a response, stating
that she does not object to the amount of EAJA fees Plaintiff requests. (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.

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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).
Plaintiff's attorney requests an award under the EAJA at an hourly rate of $183.00 for

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2013 and $186.00 for 2014, for a total of 39.82 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-Urban in support of her
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 $183.00 for 2013 and $186.00 for 2014.1 See Johnson,
919 F.2d at 505.
The Court will next address the number of hours Plaintiff’s counsel has alleged she spent
in this matter.
Plaintiff’s counsel seeks reimbursement for the following activities:
12/2/2013

12/2/2013

E-Mail ECF regarding complaint and IFP;
casenote. Email re civil cover sheet

.01

E-Mail ECF regarding complaint and IFP; casenote,
Email re complaint

.01

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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12.2.2013

12/2/2013

12/2/2013

12/2/2013

12/2/2013

2/3/2014

2/5/2014

2/6/2014

E-Mail ECF regarding complaint and IFP; casenote,
Email re notice of direct assignment to magistrate

.01

E-Mail ECF regarding complaint and IFP; casenote,
Email regarding order granting IFP and directing
service. Instructions notice to paralegal responsible
for service that approved

.01

E-Mail ECF regarding complaint and IFP; casenote,
Email regarding summons

.01

E-Mail ECF regarding complaint and IFP; casenote,
Email regarding motion IFP filemarked

.01

E-Mail ECF regarding complaint and IFP; casenote,
Email re consent to magistrate completed

.01

Service of process. Received green card 70123460 0003
3089 5416; instructions to paralegal regarding
Affidavits of Service; memo

.05

Service of process. Received green card 70123460 0003
3089 5409; instructions to paralegal regarding
Affidavits of Service; memo

.05

Service of process. Received green card 70123460 0003
3089 5423; instructions to paralegal regarding
Affidavits of Service; memo. Later that day reviewed
file and confirmed all cards here and ready for AOS.
Instructions to paralegal.

.05

These items 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). The Court will therefore
deduct .07 hours from the 2013 hours and .15 hours from the 2014 hours.
Plaintiff’s counsel seeks reimbursement for a total of 18.25 hours for time spent in 2014
reviewing the 487 page transcript and preparing the appeal brief. Plaintiff’s counsel is an
experienced social security attorney, and reviewing the 487 page transcript and preparing the
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appeal brief should not have taken her more than 14 hours. The Court will therefore deduct 4.25
hours for time spent in 2014.
Plaintiff’s counsel seeks reimbursement for 2 hours of time spent preparing the EAJA
motion and brief. 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 therefore recommends that 1 hour be deducted from the 2014 hours.
Based upon the foregoing, the Court hereby recommends that Plaintiff’s counsel be
awarded attorneys fees under the EAJA for 7.15 hours in 2013 (7.22 less .07) at an hourly rate
of $183.00; 27.2 hours in 2014 (32.60 less 5.4) at an hourly rate of $186.00, for a total award
of $6,367.65.
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 27th day of March, 2015.

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

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