Warlop v. Social Security Administration, Commissioner of

Filing 24

MEMORANDUM AND ORDER granting in part and denying in part 18 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 1/6/21. (msb)

Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 1 of 8

IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS,
J.B.W.,1
Plaintiff,
Vs.

No. 19-2615-SAC

ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
MEMORANDUM AND ORDER
On July 31, 2020, the court entered a memorandum and order
granting in part the motion to remand (ECF# 13) filed by the defendant
Commissioner of Social Security ("Commissioner"). ECF# 16. Instead of
remanding for more administrative proceedings on a disability
determination, the court reversed and remanded for a calculation and award
of benefits. Id. Judgment was entered pursuant to sentence four of 42
U.S.C. § 405(g) reversing the Commissioner’s decision and remanding this
case for a calculation and award. ECF# 17. Counsel for the claimant J.B.W.
filed on October 12, 2020, a motion for attorney fees under the EAJA along
with counsel’s affidavit and exhibits. ECF## 18 and 19. The motion asked

1 The use of initials here is pursuant to the court’s efforts to preserve privacy

interests. Even though the history of this litigation tempers the privacy
interests, the court will follow its practice.

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for fees in the amount of $9,702 (49 hours at $198 per hour) and costs in
the amount of $400. On November 11, 2020, claimant’s counsel filed a
statement of consultation indicating the parties had not reached an
agreement on the fee request. ECF# 20. Counsel filed the same day a
memorandum in support of her EAJA attorney fees motion. ECF# 21.
The Commissioner agrees that “[t]here is no dispute that Plaintiff’s
counsel deserves compensation for Plaintiff’s victory.” ECF# 22, p. 1. The
Commissioner does dispute the reasonableness of counsel’s requested fee
amount as excessive and duplicative based on the following. JBW first
appealed his application of benefits in 2015, and the case was reversed and
remanded with benefits. The claimant’s counsel received an EAJA fee award
of $6,400 which included 15.5 hours for reviewing the administrative record
of 1,018 pages and drafting the summary of testimony and medical evidence
that totaled 20 pages of the 2015 brief. For the 2019 appeal, the
administrative record expanded to 1,538 pages with the relevant additions
being the latest ALJ decision, the recent hearing transcripts, and new
medical records. After cutting and pasting the statement of facts from her
2015 brief, counsel then summarized the additional relevant facts in ten new
pages of her 2020 brief. For her time reviewing the record and drafting the
statement of facts and testimony in this latest brief, counsel’s billing ledger
shows over 20 hours. The Commissioner argues that counsel provides “no

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explanation for why it took 15.5 hours to review a 1,018-page transcript and
write 18 pages in 2015, but 20.75 hours to review 152 pages and write 10
pages in 2020.” ECF# 22, p. 4. The Commissioner asks the court to reduce
counsel’s fee award to $5,000 as she is not entitled to be paid twice for the
same work.
In reply, counsel explains her billing ledger to reflect the following:
7.75 hours for preparing the introduction and summarizing 122 pages of
new testimony and 1.25 hours for summarizing new medical evidence which
totals 9 hours for drafting 13 new pages that summarizes 157 pages of new
evidence. Counsel also billed 9.75 hours reviewing the entire record to
refresh her familiarity with the facts of the case while considering the
relevant issues on appeal and evaluating them within the relevant context of
the most recent medical expert testimony. Counsel denies billing any time
for transferring sections of her 2015 brief to her 2020 brief. Counsel
criticizes the Commissioner’s suggested reduction to $5,000 as not linked to
specific billings in dispute. Counsel points out that litigating social security
appeals is not easier after an earlier reversal and remand, as the record now
must be looked at anew against recent medical expert testimony that is
unfavorable to the plaintiff. Counsel believes it reasonable to bill “49 hours
to prepare a brief of which 33 pages were newly summarized evidence and
legal argument in a 1,538-page record.” ECF# 23, p. 4. Counsel also

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supplements her fee request for 2.75 hours in preparing the statement of
consultation, the memorandum in support of fee motion, and the reply.
Sustained by the proceedings to date and consistent with the parties’
concessions, the court finds that the plaintiff is the prevailing party pursuant
to the sentence four reversal and remand for a calculation and award of
benefits and that the Commissioner has not shown its position to have been
substantially justified. EAJA fee requests are under the court’s duty to review
for reasonableness. See Sieber v. Berryhill, No. 17-2630-JWL 2018 WL
3389888, at *2 (D. Kan. Jul. 12, 2018) (citing Hensley v. Eckerhart, 461
U.S. 424, 433-34 (1983)). In seeking fees, the plaintiff bears the burden of
showing its requested hourly rate and the requested number of hours are
reasonable under the circumstances. Id. The Commissioner does not dispute
that an hourly rate of $198 correctly reflects the maximum fee with the
appropriate cost of living adjustment.
The only dispute here is with the reasonableness of the hours
requested by the plaintiff’s attorney. The Tenth Circuit in Robinson v. City of
Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998), has summarized the court’s
relevant evaluation in this way:
“The prevailing party must make a ‘good-faith effort to exclude
from a fee request hours that are excessive, redundant, or otherwise
unnecessary.’” Jane L. [v. Bangerter], 61 F.3d [1505] at 1510 [(10th
Cir. 1995)] (quoting Hensley, 461 U.S. at 434, 103 S.Ct. 1933). A
district court should approach this reasonableness inquiry “much as a

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senior partner in a private law firm would review the reports of
subordinate attorneys when billing clients....” Ramos v. Lamm, 713
F.2d 546, 555 (10th Cir.1983). However, “[t]he record ought to assure
us that the district court did not ‘eyeball’ the fee request and cut it
down by an arbitrary percentage....” People Who Care v. Rockford Bd.
of Educ., Sch. Dist. No. 205, 90 F.3d 1307, 1314 (7th Cir.1996)
(quotations omitted).
The Ramos court suggested that among the factors to be
considered were (1) whether the tasks being billed “would normally be
billed to a paying client,” (2) the number of hours spent on each task,
(3) “the complexity of the case,” (4) “the number of reasonable
strategies pursued,” (5) “the responses necessitated by the
maneuvering of the other side,” and (6) “potential duplication of
services” by multiple lawyers. Id. at 554. As part of this
reasonableness determination, a district court may discount requested
attorney hours if the attorney fails to keep “meticulous,
contemporaneous time records” that reveal “all hours for which
compensation is requested and how those hours were allotted to
specific tasks.” Id. at 553.
In this analysis, we ask what hours a reasonable attorney would
have incurred and billed in the marketplace under similar
circumstances. “In other words the object is to simulate the market
where a direct market determination is infeasible.” Steinlauf v.
Continental Illinois Corp., 962 F.2d 566, 572 (7th Cir.1992).
As generally stated in the past, EAJA applications in routine social
security disability cases are typically between 30 and 40 hours, and hours
have been reduced from applications exceeding this range in routine cases.
See Gatewood v. Colvin, No. 13-1339-SAC, 2016 WL 8670056, at *1 (D.
Kan. Oct. 14, 2016). Depending on the number and complexity of the issues
raised and argued in the case, this court generally approves the
reasonableness of counsel expending between 20 to 30 hours on the initial
brief in a routine case. See, e.g., Gatewood, 2016 WL 8670056, at *2 (22.95

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hours reasonable); Ziegler v. Colvin, No. 15-1097-SAC, 2016 WL 8670055,
at *2 (court reduced 32.45 hours request to 28 hours for initial brief); Tate
v. Colvin, No. 15-4870-SAC, No. 2016 WL 7373896, at *2 (Dec. 20, 2016)
(court reduced requested 34.5 hours to 30.5 hours); Hinck v. Colvin, No. 131389-JWL, 2015 WL 6473562, at *3 (D. Kan. Oct. 27, 2015) (request of
38.95 hours for initial brief reduced by 10 hours); Sigmon v. Saul, No. 184049-JWL, 2019 WL 5067210, at *3 (D. Kan. Oct. 9, 2019)(30 hours
reasonable).
In the 2015 case, working with a record of just over 1,000 pages, the
plaintiff’s counsel billed 23 hours for her initial brief of 39 pages. ECF# 22-2,
p. 2. In the current case, working with same record and an additional 157
pages of new evidence, the plaintiff’s counsel billed 39.5 hours for her initial
brief of 55 pages. ECF# 19-1. The plaintiff counsel’s explanation for this
disparity in billed hours between the two briefs is not persuasive. Both briefs
advance essentially the same three issues. The court appreciates the second
appeal required discussing these issues within the framework of a different
ALJ decision and evaluation of the evidence as well as within the context of
recent testimony and medical evidence. In comparing the two briefs, the
court finds the plaintiff’s counsel to have cut and pasted between 18 to 20
pages of the 2015 brief into the 2020 brief. The plaintiff’s counsel
summarizes the additional record in the second appeal as the new ALJ

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decision, 35 pages of medical evidence and 122 pages of new testimony.
ECF# 21, p. 4. The recent ALJ decision, testimony and medical evidence,
however, do not justify all additional hours requested for preparing the 2020
brief.
The plaintiff’s counsel explains her ledger as showing she spent 7.75
hours preparing the introduction and summarizing 122 pages of new
testimony and 1.25 hours summarizing the 35 pages of medical evidence for
a total of 9 hours to draft 13 pages in her brief. The kind of testimony and
evidence summarized here was not involved or complex. The court reduces
the request by two hours. The plaintiff’s counsel next explains that she spent
9.75 hours reviewing the entire record in order to consider the issues in the
context of the most recent medical evidence and expert testimony. The court
finds these hours excessive as the plaintiff’s counsel had already reviewed
and summarized this record in 2015 and did not change a word of that
summary for purposes of her 2020 brief. This prior work should have
assisted counsel in finding and reviewing only those parts of the record most
relevant to her 2020 considerations. Thus, the court reduces this request by
six hours. Finally, counsel bills 13.5 hours for drafting her three legal
arguments and 6 more hours for editing. Neither the complexity of the
arguments nor the length of the brief warrant this requested hours. The
court reduces the request by another two hours. In conclusion, the court

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finds that 39.5 hours for the initial brief is excessive and reduces those
hours by a total of ten as explained above. Such a total is more consistent
with counsel’s billing in the first appeal while taking into account counsel’s
unique challenges with this second appeal. The court also finds that
counsel’s request for 2.75 hours to defend this fee request is reasonable.
Following its review of the itemizations and for the reasons discussed
above, the court finds that a reasonable amount of time expended before
this court is 41.9 hours (49.15 - 10 + 2.75). At an hourly rate of $198.00,
the court finds that a total fee award of $8,296.20 is reasonable. The
Commissioner did not oppose plaintiff’s request for reimbursement of the
filing fee; therefore, it will be granted as uncontested.
IT IS THEREFORE ORDERED that the plaintiff’s motion for EAJA fees
(ECF# 18) is granted in part and denied in part, and the Commissioner is
ordered to pay attorney fees in the amount of $8,296.20;
IT IS FURTHER ORDERED that plaintiff’s request for costs for
reimbursement of filing fee in the amount of $400.00. is granted, and the
Commissioner shall pay these costs from the Judgment Fund administered
by the United States Treasury Department.
Dated this _6th_ day of January, 2021, Topeka, Kansas.
____/s Sam A. Crow______________________
Sam A. Crow, U.S. District Senior Judge

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