Tate v. Social Security Administration

Filing 29

MEMORANDUM AND ORDER granting in part and denying in part 24 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 12/20/16. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBORAH D. TATE,
Plaintiff,
vs.

Case No. 15-4870-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
Plaintiff filed an application for attorney fees under the
Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA) (Doc. 24).
The motion has been fully briefed by the parties.
I. General legal standards
The EAJA provides for an award of attorney fees to a
prevailing party in a suit against the United States unless the
court finds that the position of the United States was
substantially justified or that special circumstances make an
award unjust.

Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th

Cir. 2007); Estate of Smith v. O'Halloran, 930 F.2d 1496, 1501
(10th Cir.1991).

Under the EAJA, a prevailing party includes a

plaintiff who secures a sentence four remand reversing the
Commissioner's denial of benefits as to “any significant issue
in litigation which achieve[d] some of the benefit ... sought in
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bringing suit.”

Tex. State Teachers Ass'n v. Garland Indep.

Sch. Dist., 489 U.S. 782, 791-92, 109 S.Ct. 1486, 103 L.Ed.2d
866 (1989); Sommerville v. Astrue, 555 F. Supp.2d 1251, 1253 (D.
Kan. 2008).
The Commissioner bears the burden to show that his position
was substantially justified.
1394 (10th Cir.1995).

Gilbert v. Shalala, 45 F.3d 1391,

However, the party seeking the fees has

the burden to show that both the hourly rate and the number of
hours expended is reasonable in the circumstances.

Hensley v.

Eckerhart, 461 U.S. 424, 433-34, 437, 103 S.Ct. 1933, 76 L.Ed.2d
40 (1983); Sommerville v. Astrue, 555 F. Supp.2d at 1253.
II.

Reasonableness of EAJA request
Plaintiff is requesting attorney fees for 58 hours at a

rate of $185.06 an hour, for a total of $10,733.48 (this
includes an additional 4 hours for work on the EAJA motion).
Defendant argues that this is unreasonable, and that a
reasonable number of hours would be 35 hours, which would result
in a fee of $$6,477.10.

As noted above, the party seeking fees

has the burden to show that the hourly rate and the number of
hours is reasonable.
As this court has indicated in the past, the typical EAJA
fee application in social security cases is between 30 and 40
hours.

Thus, courts in this district have not hesitated to

disallow hours over 40 as unreasonable in routine EAJA social
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security cases.

Williams v. Astrue, 2007 WL 2582177 at *1 & n.3

(D. Kan. Aug. 28, 2007); see Lavoie v. Colvin, 2016 WL 4181323
at *3 (D. Kan. Aug. 8, 2016)(As judges in this district have
noted for more than twenty years, a typical number of hours
claimed in EAJA applications in “straightforward” disability
cases is between thirty and forty hours).

However, this court

has permitted an award of 76.75 hours upon finding that the
amount of time documented was reasonably necessary to accomplish
the tasks listed.

Masenthin v. Barnhart, 2005 WL 1863146 at *3-

4 (D. Kan. July 21, 2005).

Courts in this district have

recently approved 67.86 hours of attorney time, noting a record
of more than 1,000 pages, Sommerville v. Astrue, 555 F. Supp.2d
1251, 1254 (D. Kan. 2008), and have found that 53.75 hours was
reasonably expended (a reduction from a request of 65.75 hours),
Farmer v. Astrue, 2010 WL 4904801 at *1-3 (D. Kan. 2010).

In

the case of Linder v. Astrue, Case No. 09-1210-SAC (D. Kan. June
21, 2011, Doc. 36) this court found that 54.10 hours was
reasonably expended (a reduction from a request of 68.55 hours).
In the case of Bonzo v. Astrue, Case No. 11-2275-SAC (D. Kan.
May 23, 2012, Doc. 23), this court found that 44 hours was
reasonably expended (a reduction from a request of 56.90 hours).
Where a plaintiff has obtained excellent results, his attorney
should recover a fully compensatory fee.

Hensley v. Eckerhart,

461 U.S. 424, 435, 103 S. Ct. 1933, 76 L. Ed.2d 40 (1983).
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The court has carefully reviewed the briefs and issues
raised by the parties in this case.

Plaintiff’s counsel spent

34.5 hours preparing a 25 page initial brief which raised three
major issues, the weight accorded to various medical opinions,
the ALJ’s credibility findings (including plaintiff’s daily
activities), and whether the VE testimony conflicted with the
DOT.

Plaintiff’s counsel also spent 16.5 hours on the reply

brief.

The issues in this case were not unduly complex.

In

light of the issues raised in this case, the court finds that
30.5 hours was reasonably expended in the writing of the initial
brief, and 12.5 hours was reasonably expended on the writing of
the reply brief.

The court finds that the other hours billed by

plaintiff were reasonable.

The court will add an additional 4

hours for plaintiff’s counsel to respond to defendant’s
objection to the EAJA motion.
In summary, the court finds that 50 hours was reasonably
expended in presenting this case to the court.

Therefore, a

reasonable attorney fee pursuant to the EAJA is $9,253.00 (50
hours x $185.06 per hour).

Defendant did not oppose plaintiff’s

request for reimbursement of the filing fee; therefore, it will
be granted as an uncontested motion.
IT IS THEREFORE ORDERED that plaintiff’s motion for
attorney fees pursuant to the Equal Access to Justice Act (Doc.

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24) is granted in part, and the Commissioner is ordered to pay
plaintiff an attorney fee in the amount of $9,253.00.
IT IS FURTHER ORDERED that plaintiff’s motion for
reimbursement of the filing fee in the amount of $400.00 is
granted.

The Commissioner is ordered to pay plaintiff $400.00

for the costs of this action from the Judgement Fund
administered by the United States Treasury Department.
Dated this 20th day of December 2016, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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