Musteen v. Social Security Administration Commissioner
Filing
19
ORDER on Attorney Fees in favor of Scielinda Musteen against Social Security Administration Commissioner in the amount of $5,293.50. 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 P. K. Holmes III on February 21, 2019. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
SCIELINDA MUSTEEN
v.
PLAINTIFF
NO. 18-5083
NANCY A. BERRYHILL, Commissioner
Social Security Administration
DEFENDANT
ORDER
Plaintiff, Scielinda Musteen, appealed the Commissioner's denial of benefits to this Court.
On October 11, 2018, judgment was entered remanding Plaintiff's case to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 15). Plaintiff now moves for an award of
$5,293.50 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 $195.00 for work performed in 2018; and 2.20 paralegal hours at an hourly
rate of $75.00. (Docs. 16-17). Defendant filed a response to Plaintiff’s application, stating that
she does not oppose an award to Plaintiff in the amount requested. (Doc. 18).
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 sentencefour judgment reversing the Commissioner’s denial of benefits and remanding the case for further
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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 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 2018, at an hourly rate of $195.00. 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 $195.00 per hour in 2018.
Plaintiff’s counsel has also requested 2.20 paralegal hours of work at the rate of $75.00 per
hour. The Court finds $75.00 per hour for paralegal work to be reasonable.
The Court next addresses the number of hours Plaintiff's counsel claims she spent working
on this case. The Court has reviewed the itemized statement, and finds the amount of 26.30
attorney hours and 2.20 paralegal hours is reasonable.
Based upon the foregoing, the Court finds that Plaintiff is entitled to an attorney’s fee award
under the EAJA for: 26.30 attorney hours for work performed in 2018, at an hourly rate of $195.00;
and 2.20 paralegal hours at an hourly rate of $75.00, for a total attorney’s fee of $5,293.50. 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.
1
Per General Order 39, the allowable rate for each year is as follows, and for simplicity sake, the figure is rounded to the nearest
dollar:
2018 – 238.512 x 125 divided by 152.4 (March 1996 CPI-South) = $195.629/hour - $195.00.
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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 February 2019.
/s/P.K. Holmes,III
P. K. HOLMES, III
U.S. DISTRICT JUDGE
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