Breece v. Social Security Administration Commissioner

Filing 18

ORDER on Attorney Fees in favor of Donna G. Breece against Social Security Administration Commissioner in the amount of $6,138.00. 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 July 21, 2015. (tg)

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

DONNA G. BREECE

v.

PLAINTIFF

NO. 14-5186

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

ORDER
Plaintiff, Donna G. Breece, appealed the Commissioner's denial of benefits to this Court.
On January 6, 2015, judgment was entered remanding Plaintiff's case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 13). Plaintiff now moves for an award
of $7,086.60 in attorney’s fees and expenses under 28 U.S.C. § 2412, the Equal Access to Justice
Act (hereinafter “EAJA”), requesting compensation for 38.10 attorney hours of work before the
Court at an hourly rate of $186.00 for work performed in 2014, and 2015. (Doc. 15). Defendant
filed a response to Plaintiff’s application, objecting to certain hours claimed. (Doc. 17).
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

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for further proceedings is a prevailing party. After reviewing the file, the Court finds that
Plaintiff is a prevailing party in this matter.
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

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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 for 38.10 hours of attorney work
performed in 2014, and 2015,1 at an hourly rate of $186.00. 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).
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 her requested hourly rate.
Therefore, the undersigned believes her argument for enhanced fees based on a cost of living
increase has merit.2

1

The Court notes that 4.00 hours submitted by Plaintiff’s counsel were performed in 2015. As Plaintiff’s counsel
calculated this time with the 2014 hourly rate, the Court will also use the 2014 hourly rate when calculating
Plaintiff’s EAJA award.

2

Per General Order 39, the allowable rate for each year is a follows, and for simplicity sake, the figure is rounded
to the nearest dollar:
2014 - 227.082 x 125 divided by 152.4 (March 1996 CPI -South) = $186.25/hour- 186.00.

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The Court next addresses the number of hours Plaintiff's counsel claims she spent
working on this case. Defendant argues that the 2.00 hours performed on May 5, 2014, May 6,
2014, and May 7, 2014, should not be allowed as the work performed was not work before the
Court. The Court notes Plaintiff’s Complaint was not filed until June 20, 2014. The submission
on these dates are as follows:
0.50 hour

05/05/2014

CLIENT CALL E-MAIL.CL mother called and let
me know that she rcv’d Denial from AC. CL is
very upset that’s why mother called. I let her
know I will review and decide if taking it federal
is winnable. Reviewing while on the phone.
Burton so will probably be step 4 but review for
FDR as well. She stated that would be okay and
thanked me for my time. Casenote.

1.00 hour

05/06/2014

ORDER/OPINIONS. Receipt and review of
Appeals Council denial; ALJ Burton decision;
review of hearing notes and formulation of initial
recommendations; Polaski considerations; record
development; can argue ALJ improperly weighed
the medical source opinion evidence; reviewed
vocational expert evidence; can argue failure
develop record; instructions to staff on client
contact; email.

0.50 hour

05/07/2014

CORRESPONDENCE. LJM to CL Appeals
Council loss send $400 and some explanation of
IFP potential; review of decision then letter.
Casenote.

After reviewing the submissions, the Court finds that the time requested above is duplicative of
the time Plaintiff’s counsel submitted on June 17, 2014, to review the file prior to drafting the
Complaint on the same date. With respect to the IFP work submitted above, Plaintiff’s counsel
also submitted time for helping Plaintiff complete the IFP form on May 15, 2014, and to review

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the form once completed on June 5, 2014. Accordingly, the Court finds that the submissions
requested on May 5, 2014, May 6, 2014, and May 7, 2014, should be reduced as they are
duplicative of submissions made closer to the filing of Plaintiff’s Complaint. Accordingly, the
Court will deduct 2.00 hours from the total compensable time sought by counsel.
Defendant also argues that some of the time sought by Plaintiff’s counsel could have been
performed by support staff as it is clerical in nature. Defendant objects to the following
submissions which total 1.10 hours:
0.5 hour

5/08/14

CORRESPONDENCE. LJM IFP to CL; instructions
regarding IFP; review of database on CL’s financial
status. Casenote;

0.5 hour

6/18/14

CORRESPONDENCE. LJM to clerk; LJM to client;
and

0.1 hour

8/26/14

SERV. of PROCESS. Correspondence and signed
service for paralegals.

The Court agrees with Defendant that this work is clerical in nature and could have been
performed by support staff. 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 1.10 hours from the total compensable time
sought by counsel.
Defendant argues that the 3.00 hours submitted on April 5, 2015, to prepare Plaintiff’s
EAJA motion is excessive and should be reduced to one hour. The Court finds the time sought
to be excessive given that the petition and brief appear to be the standard petition and brief
submitted by Plaintiff’s counsel in social security cases. The Court will, therefore, deduct 2.00
hours from the total compensable time sought by counsel.

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In her 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 is entitled to an attorney’s fee
award under the EAJA for: 33 (38.10-5.10) attorney hours for work performed in 2014 and 2015,
at an hourly rate of $186, for a total attorney’s fee of $6,138.00. 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.
IT IS SO ORDERED AND ADJUDGED this 21st day of July, 2015.

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

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