Chisholm v. Social Security Administration, Commissioner of

Filing 31

MEMORANDUM AND ORDER granting in part 30 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 2/5/15. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DEBRA L. CHISHOLM,
Plaintiff,
vs.

Case No. 13-1276-SAC

MICHAEL J. ASTRUE,
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. 30).
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.

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
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benefit ... sought in 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
Defendant is requesting attorney’s fees for 54.55 hours at

a rate of $185.48 per hour.

As noted above, the party seeking

the 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
security cases.

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

(D. Kan. Aug. 28, 2007).

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
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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).
The record in this case only consisted of 423 pages.
Plaintiff’s counsel wrote a 28 page brief and a 19 page reply
brief.

The issues raised were not unusually difficult or

complicated.

Plaintiff’s counsel spent 30.1 hours writing the

initial brief and 19.75 hours to write the reply brief.
Plaintiff’s counsel spent the remaining time reviewing the
complaint, conferring with the client, reviewing the decision of
the court, and preparing the EAJA application.
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The court finds that only 9 hours was needed for the
research and writing of the reply brief.

The court finds that a

reasonable time was expended in preparing the initial brief and
the other tasks set forth in the affidavit.

The court therefore

finds that 43.8 hours was reasonably expended in presenting this
case to the court.

The court also finds that the hourly rate of

$185.48 is reasonable.

Therefore, a reasonable attorney’s fee

pursuant to the EAJA is $8,124.02 (43.8 hours x 185.48 per
hour).
IT IS THEREFORE ORDERED that plaintiff’s motion for
attorney fees pursuant to the Equal Access to Justice Act (Doc.
30) is granted in part, and the Commissioner is ordered to pay
plaintiff an attorney fee in the amount of $8,124.02.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is reversed and remanded pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with
this memorandum and order.
Dated this 5th day of February 2015, Topeka, Kansas.

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

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