Scott v. Social Security Administration Commissioner

Filing 17

JUDGMENT on Attorney Fees in favor of John R. Scott against Social Security Administration Commissioner in the amount of $5,862.00. 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 October 31, 2016. (tg)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
JOHN R. SCOTT

v.

PLAINTIFF

NO. 15-5092

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT
ORDER

Plaintiff, John R. Scott, appealed the Commissioner's denial of benefits to this Court.
On June 28, 2016, 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 $5,957.60 in attorney’s fees and expenses under 28 U.S.C. § 2412, the Equal Access to
Justice Act (hereinafter “EAJA”), requesting compensation for 26.30 attorney hours of work
before the Court at an hourly rate of $187.00 for work performed in 2015, and 5.50 attorney
hours of work before the Court at an hourly rate of $189.00 per hour for work performed in
2016. (Docs. 14). Defendant filed a response to Plaintiff’s application, only objecting to
Plaintiff’s request for fees at an hourly rate of $189.00 for 2016 rather than $188.00. (Doc.
16).
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
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benefits and remanding the case 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 feeshifting 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).

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Plaintiff’s attorney requests an award under the EAJA for 26.30 hours of attorney
work performed in 2015, at an hourly rate of $187.00; and 5.50 hours of attorney work
performed in 2016, at an hourly rate of $189.00. 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).
Pursuant to General Order 39, 1 which references the Consumer Price Index (CPI) –
South, the Court finds that an enhanced hourly rate based on a cost of living increase is
appropriate, and counsel will be compensated at $187.00 per hour in 2015 and $188.00
per hour in 2016.
The Court next addresses the number of hours Plaintiff's counsel claims she spent
working on this case.
Clerical/Excessive Time in 2015 and 2016:
Plaintiff seeks to be reimbursed at the attorney rate for the following tasks :
5/12/15

EMAIL. Order granting motion for service and directing
service. Notation and LJM instructions to file.
.05

5/20/15

CORRESPONDENCE. File-marked complaint returned.
Instructions to paralegal regarding service of process
.05

1

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:
2015 - 228.451 x 125 divided by 152.4 (March 1996 CPI-South) = $187.38/hour - $187.00.
2016 - 229.581 x 125 divided by 152.4 (March 1996 CPI-South) = $188.30/hour - $188.00.

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7/28/15

SERVICE PROCESS.LJM review of paralegal service of
process and certified mail.
.05

8/18/15

SERVICE PROCESS. LJM 110 day final warning review of
service of process; only two of there[sic] green cards returned.
Meeting with paralegal and troubleshooting; delaying the AOS.
.10

8/21/15

SERVICE PROCESS LJ. ROF, final greed cared[sic] from
Holder received. 08/04/15 rec’d 08/10/15, 7014-0150-00007080-1923, but had not been properly processed through
scanning as of the 8/15/2015 review despite receive on
8/10/2015; service complete
.05

Clerical or secretarial tasks are not compensable under the EAJA. See 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). “[P]urely
clerical or secretarial tasks should not be billed at [even] a paralegal rate regardless of who
performs them.” Missouri v. Jenkins, 491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 2471 n. 10
(1989).

There is a plethora of district court cases reaching different conclusions as to

whether tasks such as those detailed above are compensable or are considered purely clerical.
See e.g., Peters v. Colvin, No. 15-CV-5198-JRC, 2016 WL 948958 at *5 (W.D. Wash. Mar.
14, 2016); Zabawa v. Colvin, 3:14-CV-3068-MEF, 2016 WL 164625 at *1 (W.D. Ark. Jan.
13, 2016); Sheridan v. Colvin, No. JKB-15-10, 2015 WL 5897735 at *2 (D. Md. Oct. 5,
2015); Talmo v. Colvin, No. ELH-14-2214, 2015 WL 5897707 at *2 (D. Md. Oct. 5, 2015);
Treadway v. Comm’r. of Social Security, No. 1-13-cv-01248-SAB, 2014 WL 6901869 at *56 (E.D. Cal. Dec. 5, 2014); Echtinaw v. Astrue, No. C09-0024-RSL, 2009 WL 6040072 at *4
(W.D. Wash. Dec. 9, 2009); Knudsen v. Barnhart, 360 F.Supp.2d 963, 977 (N.D. Iowa
2004).

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However, a review of the various decisions of the Circuit Courts of Appeals indicates
that all that have addressed the issue, except the First Circuit, hold that tasks such as the
filing of documents and preparing and serving summons are considered clerical and not
compensable. See Neil v. Comm’r. of Social Security, 495 Fed. Appx. 845, 847 (9th Cir.
2012); Role Models America, Inc. v. Brownlee, 353 F.3d 962, 973(D.C. Cir. 2004); Coleman
v. Houston Independent School District, No. 98-20692, 1999 WL 1131554 at *9 (5th Cir.
Nov. 8, 1999). The Eighth Circuit does not appear to have addressed the issue. The First
Circuit, in Lipsett v. Blanco, 975 F.2d 934, 940 (1st Cir. 1992), held that tasks such as the
filing of documents “ought not to be billed at lawyers’ rates, even if a lawyer performs
them.” The Court held that the hours should not be completely eliminated, however, as the
tasks “fell into the gray area between purely clerical tasks and those properly entrusted to a
paralegal.” Id. The Court concluded that, while the hours should not be compensated at the
extravagant attorney-fee rate, which was incommensurate to the nature of the tasks, the hours
could be compensated at the prevailing paralegal rate.
The undersigned finds the First Circuit’s approach persuasive and a reasonable
compromise when it is not clear whether tasks such as those listed above in this case should
be classified as purely clerical. Accordingly, Plaintiff’s attorney will be compensated for
these other tasks at the prevailing hourly paralegal market rate, which, based on the paralegal
rates submitted by other attorneys in this area, is $75.00.
Duplicate Time:
Plaintiff seeks reimbursement for the following task:
7/5/16 CORRESPONDENCE. Client correspondence regarding remand
decision and explaining ramifications.
.50
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However, the previous entry seeks 1.50 hours for reviewing, analyzing and processing
memorandum opinion regarding reverse and remand and correspondence to the client
regarding win and remand. Accordingly, the Court finds the subsequent entry is a duplicative
entry and should therefore be deducted.
Conclusion:
Based upon the foregoing, the Court finds that Plaintiff is entitled to an attorney’s fee
award under the EAJA for: 26.00 (26.30 - .30) attorney hours for work performed in 2015, at
an hourly rate of $187.00, 5 (5.50 - .50) attorney hours for work performed in 2016, at an
hourly rate of $188, and .80 paralegal hours at an hourly rate of $75.00, for a total attorney’s
fee of $5,862.00. This amount should be paid in addition to, and not out of, any past due
benefits which Plaintiff may be awarded in the future. 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.
IT IS SO ORDERED AND ADJUDGED this 31st day of October, 2016.

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

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