Steiner v. Social Security Administration, Commissioner of

Filing 42

MEMORANDUM AND ORDER granting in part 32 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 3/17/17. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

STEPHANIE LEANN STEINER,
Plaintiff,
vs.

Case No. 15-1247-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,1
Defendant.

MEMORANDUM AND ORDER
On September 28, 2016, this court issued an order reversing
the decision of the Commissioner and remanding this case for
further hearing (Doc. 30).

On December 27, 2016, plaintiff

filed an application for attorney fees under the Equal Access to
Justice Act, 28 U.S.C. § 2412 (EAJA) (Doc. 32).

Defendant filed

their response brief on January 10, 2017 (Doc. 35), and
plaintiff filed a reply brief on March 13, 2017 (Doc. 41).
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.
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Hackett v. Barnhart, 475 F.3d 1166, 1172 (10th

On January 20, 2017, Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security.
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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
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 61.85 hours at a

rate of $192.28 an hour, for a total of $11,892.51 (this
includes an additional 4 hours for work on the EAJA reply
brief).

Defendant argues that this is unreasonable, and that a

reasonable fee would be $6,000.00, which, at $192.28 an hour,
would be equivalent to 31.2 hours.

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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
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).
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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).
In this court’s most recent EAJA case, Tate v. Colvin, Case
No. 15-4870-SAC (D. Kan. Dec. 20, 2016; Doc. 29), plaintiff
requested attorney’s fees of 58 hours; defendant indicated that
they believed 35 hours was reasonable.

The court held that

attorney fees of 50 hours was reasonable on the facts of that
case.
The court has carefully reviewed the briefs and issues
raised by the parties in this case.

Plaintiff’s counsel spent

36.1 hours meeting with his client, preparing the complaint and
preparing a 28 page initial brief in which plaintiff
successfully argued that the ALJ erred in its evaluation of
three medical opinions.

Plaintiff raised other issues which did

not provide a basis for remand of the case, although the court
ordered that evidence regarding two of plaintiff’s impairments
(plaintiff’s headaches and bladder incontinence) be reviewed by
the ALJ on remand.

Plaintiff’s counsel spent 20.2 hours writing

a 22 page reply brief.

In light of the issues raised in this

case, the court finds that 34 hours was reasonably expended
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through the writing of the initial brief, and that 14 hours was
reasonably expended in the writing of the reply brief.

The

court finds that the other hours billed by plaintiff were
reasonable (1.55 hours).

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 53.55 hours was reasonably
expended in presenting this case to the court.

Therefore, a

reasonable attorney fee pursuant to the EAJA is $10,296.59
(53.55 hours x $192.28 an hour).
IT IS THEREFORE ORDERED that plaintiff’s motion for
attorney fees pursuant to the Equal Access to Justice Act (Doc.
32) is granted in part, and the Commissioner is ordered to pay
plaintiff an attorney fee in the amount of $10,296.59.
Dated this 17th day of March 2017, Topeka, Kansas.

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

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