McIlrath v. Social Security Administration, Commissioner of
MEMORANDUM AND ORDER granting in part and denying in part 23 Motion for Attorney Fees. IT IS THEREFORE ORDERED that plaintiff's "Application for Attorney Fees under the Equal Access to Justice Act" (Doc. 23) be GRANTED in part and D ENIED in part, and that fees be awarded in the sum of $6,243.00.IT IS FURTHER ORDERED that costs of $400.00 shall also be paid in accordance with 28 U.S.C. § 2412(c)(1). Signed by District Judge John W. Lungstrum on 05/23/2017. (ses)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
LAWRENCE CLARK MCILRATH,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
MEMORANDUM AND ORDER
This matter is before the court on Plaintiff’s “Application for Attorney Fees Under
The Equal Access to Justice Act” (EAJA) (28 U.S.C. § 2412) (Doc. 23) (hereinafter
EAJA Mot.). The Commissioner does not object to the hourly rate of $191.21 requested
by Plaintiff, or to awarding costs of $400.00, and she admits that a fee award is proper but
argues that the amount requested is unreasonable because “the attorney hours billed are
excessive, particularly in light of counsel’s representation of Plaintiff during the
administrative proceedings.” (Doc. 24, p.3) (hereinafter EAJA Resp.). The court finds
On Jan. 20, 2017, Nancy A. Berryhill became Acting Commissioner of Social
Security. In accordance with Rule 25(d)(1) of the Federal Rules of Civil Procedure, Ms.
Berryhill is substituted for Acting Commissioner Carolyn W. Colvin as the defendant. In
accordance with the last sentence of 42 U.S.C. § 405(g), no further action is necessary.
Plaintiff has not met his burden to establish that the amount of time billed was reasonable.
Therefore, the court PARTIALLY GRANTS Plaintiff’s motion for attorney fees,
allowing 32.65 hours at the rate of $191.21, resulting in a fee award of $6,243.00 as
Plaintiff sought review of the Commissioner’s decision denying disability
insurance benefits. (Doc. 1). The Commissioner answered and filed the transcript of
record. (Docs. 3, 4). After briefing was complete, this court determined the ALJ “did not
adequately explain his findings regarding deficits in Plaintiff’s concentration, persistence,
or pace resulting from his pain, and Plaintiff’s ability nonetheless to perform highly
skilled work,” and ordered that judgment be entered remanding the case for further
proceedings. (Doc. 21, p.1) (hereinafter Ct’s Opinion). Plaintiff now seeks payment of
attorney fees pursuant to the EAJA,2 28 U.S.C. § 2412.
Plaintiff’s counsel, Mr. David H. M. Gray, has established that: (1) he has
represented Plaintiff pursuant to a contingency fee agreement since October 11, 2013,
(2) his customary hourly rate is $300.00, and (3) he expended fifty-one and four tenths
In relevant part, the EAJA states:
(d)(1)(A) . . . a court shall award to a prevailing party other than the United
States fees and other expenses . . . unless the court finds that the position of
the United States was substantially justified or that special circumstances
make an award unjust. . . .
28 U.S.C. § 2412.
hours in representing Plaintiff including: (a) twenty-nine and five tenths hours preparing
and filing a Complaint, and reading, researching, and writing Plaintiff’s Brief in the case,
(b) fifteen and seventy-five hundredths hours reading, researching, and writing a Reply
Brief, (c) one and sixty-five hundredths of an hour reading the court’s Order and
preparing an EAJA fee brief, and (d) four and fifty hundredths hours researching and
preparing an EAJA reply brief. Plaintiff’s counsel also asserts that the fee cap under the
EAJA, adjusted for cost of living increases, is $191.21 per hour, and he seeks fees in the
amount of $9,828.14.
The court has a duty to evaluate the reasonableness of every fee request. Hensley
v. Eckerhart, 461 U.S. 424, 433-34 (1983). The EAJA requires that a court award a fee to
a prevailing plaintiff unless the court finds that the position of the United States was
substantially justified. Gilbert v. Shalala, 45 F.3d 1391, 1394 (10th Cir. 1995) (citing
Estate of Smith v. O’Halloran, 930 F.2d 1496, 1501 (10th Cir. 1991)). The test for
substantial justification is one of reasonableness in law and fact. Id. The Commissioner
bears the burden to show substantial justification for her position. Id.; Estate of Smith,
930 F.2d at 1501. Here, the Commissioner does not argue that the government’s position
was substantially justified. The maximum fee of $125 per hour provided in
§ 2412(d)(2)(A), if awarded, may be adjusted for increases in the cost of living. Harris v.
R.R. Ret. Bd. 990 F.2d 519, 521 (10th Cir. 1993); 28 U.S.C. § 2412(d)(2)(A)(ii).
The party seeking attorney fees bears the burden of proving that his request is
reasonable and must “submit evidence supporting the hours worked.” Hensley, 461 U.S.
at 433, 434. The objecting party has the burden to challenge, through affidavit or brief,
with sufficient specificity to provide notice to the fee applicant the portion of the fee
petition which must be defended. Bell v. United Princeton Prop., Inc., 884 F.2d 713, 715
(3d Cir. 1989).
The Commissioner agrees that award of a fee under the EAJA is appropriate in this
case but disagrees with the amount of the fee requested. She argues that “[m]ultiple
courts have found that 20 to 40 hours is a reasonable expenditure of attorney time for
routine Social Security cases.” (EAJA Resp. 4) (citing cases). She argues that Plaintiff
opted for a “Cadillac” litigation strategy, but that the court should not make the
government pay for such an unreasonable choice. Id. at 3 (citing Praseuth v. Rubbermaid,
Inc., 406 F.3d 1245, 1247 (10th Cir. 2005)). Particularly, she objects to being billed 27.5
hours to prepare a 27-page opening brief addressing “every possible issue,” and 11.75
hours to draft a 16-page reply brief.3 Id.
It appears that the Commissioner misunderstood counsel’s “Statement of time
expended, because that document contains three entries regarding time spent on the Reply
Brief: 5.25 hours on October 14, 2016, 6.5 hours on October 15, and 4.0 hours on
October 16, for a total of 15.75 hours on that brief. (Doc. 23, Attach. 2, p.3).
She argues that the time expended is “excessive in light of [counsel’s] familiarity
with this case,” id. at 4, and the eight-page brief he presented to the agency in July, 2015
“containing many of the same legal arguments he made before this court.” Id. at 5. She
argues that Plaintiff’s counsel explained his experience and expertise in dealing with
Social Security disability cases, and she asserts that an attorney so well qualified as he
should not take so many hours to present a case such as this. (EAJA Resp. 5).
The Commissioner argues that this case involved an average-length record and
standard arguments, and there is nothing to justify awarding a fee above the high-end of
the spectrum of typical awards. Id. at 6 (citing Williams v. Astrue, No. 06-4027-SAC,
2007 WL 2582177 at *1 (D. Kan. Aug. 28, 2007) (“[C]ourts in this district have not
hesitated to disallow hours over 40 as unreasonable in recent routine EAJA social security
cases;” collecting cases). The Commissioner points to a case in which this court recently
awarded 35-hours of fees to the same counsel, and argues that case is similar and can be
used as a gauge here. Id. (citing Lavoie v. Colvin, Civ. A. No. 14-1352-JWL, 2016 WL
4181323 (D. Kan. Aug. 8, 2016)). She notes the court found that in normal circumstances
30 hours would be reasonable in a case such as Lavoie, but that five hours additional was
justified because counsel had not represented Ms. Lavoie before the Commissioner and
took the case shortly before the limitation period expired in that case. 2016 WL 4181323
at *3. She argues that this case is similar to Lavoie except that counsel represented the
plaintiff in this case before the Commissioner and this record is less than 600 pages
whereas the record in Lavoie was over 1,100 pages. (EAJA Resp. 6).
Plaintiff’s counsel argues the cases relied upon by the Commissioner are much
larger cases with aggressive strategy and excessive billing and do not relate to the subject
matter of this case. (Doc. 28 p. 5) (hereinafter EAJA Reply). He argues that claims
regarding a Cadillac litigation strategy, aggressive strategy, and briefing every possible
issue are not “specific objections” within the meaning of the governing law regarding
objections to hours expended for which fees are claimed pursuant to the EAJA, and are
insufficient to advise the fee applicant of what is at issue. (EAJA Reply 5-6) (quoting
Walton v. Massanari, 177 F. Supp. 2d 359, 361-62 (E.D. Pa. 2001)). He argues that
although the court did not find merit in every issue raised by Plaintiff, he may be
compensated for all good-faith arguments raised. Id. at 6-7. Plaintiff points to the court’s
statement that certain facts removed this case from the mine run of Social Security cases
and argues that this case is not a routine case. He argues this is also true because the
record at “571 pages is approaching twice the typical record,” and it did not involve
standard arguments because of the legal principles which removed it from the mine run of
cases. Id. at 10. He argues that “[b]ecause the ALJ erred in so many respects, the
plaintiff was forced to submit a brief that covered each of those areas in order to make an
appropriate presentation and argument to this court.” Id. at 11 (quoting Coleman v.
Astrue, No. 06-2427-JWL, 2008 WL 234404, at *4 (D. Kan. Jan. 28, 2008)). He also
argues that although his counsel handled the case before the Commissioner, wrote a brief
for the Appeals Council, and has extensive experience and expertise in Social Security
cases, that is merely a reason that preparation, research, and briefing of this case would
have required greater time for a less-experienced counsel. Id. at 14.
As Plaintiff points out in his EAJA Reply Brief, in its decision in this case, the
court noted “two salient facts which remove this case from the mine run of Social
Security disability cases--Plaintiff was 62 years old on his alleged disability onset date,
placing him in the category of a person of advanced age who is closely approaching
retirement age, and Plaintiff’s past relevant work was highly skilled work.” (Court’s
Opinion, 4) (citations omitted). These facts do not appear in most Social Security cases,
and in that sense Plaintiff is correct that this is not a “routine” Social Security case.
However, Plaintiff’s counsel demonstrated his experience and expertise in handling
Social Security cases when he argued in his Brief to the Appeals Council that these two
facts should have made a difference in the ALJ’s decision in this case. (R. 336, 342-43)
(arguing that the RFC limitation to “simple work decisions” and according substantial
weight to Dr. Allen’s opinion, precludes transferability of skills from skilled work to
other skilled work, and concluding that “at closely approaching retirement age and even
limited to light work, claimant meets grid rule 202.06").
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. See Chisholm v. Astrue, No. 13-1276-SAC, 2015 WL 474345, at
*1-2 (D. Kan. Feb. 5, 2015) (reducing time from 54.55 hours to 43.8 hours); Edwards v.
Astrue, No. 07-2157-KHV, 2008 WL 4066100 (D. Kan. Aug. 28, 2008) (reducing time
from 44.25 hours to 40 hours); Brooks v. Barnhart, No. 04-2526-CM, 2006 WL 3027975,
*2 (D. Kan. Sept. 25, 2006) (reducing time from 52 hours to 40 hours); Nave v.
Barnhardt, No. 03-2076-JWL, 2003 WL 22300178, *2 (D. Kan. Oct. 7, 2003) (granting a
fee request for 28.4 hours as well within the time for a typical Social Security case);
Peoples v. Shalala, 1995 WL 462213, at *2 (D. Kan. July 27, 1995) (where nothing about
the case appeared to warrant an “extra” expenditure of time, court would not permit
plaintiff’s counsel to recover more than the “typical” amount of hours expended-between
thirty and forty); Austin v. Shalala, 1994 WL 114845, at *2 (D. Kan. Apr. 1, 1994)
(finding recovery for 40 hours of total time expended is reasonable for typical social
But for Plaintiff’s age (62 - closely approaching retirement age), his highly skilled
past relevant work, and the ALJ’s finding of transferability of skills to other highly skilled
work, this case would qualify as a “straightforward” or “routine” Social Security case.
Moreover, each issue taking this case out of the “routine” category was identified by
counsel and previously addressed in his Brief to the Appeals Council. And, many of the
“straightforward” or “routine” issues present in this case were also addressed in Plaintiff’s
Brief to the Appeals Council.
Plaintiff’s argument that this record, at 571 pages, is approaching twice the size of
a typical record in the range of 300 pages, is unpersuasive. First, he cites no authority for
the proposition that a typical record is in the range of 300 pages, and the court’s
experience reviewing Social Security cases does not support the assertion. While the
court acknowledges that in recent years a greater number of cases appear with records
less than 500 pages, the court’s experience reveals a “typical” record ranges between 400
to 700 pages, and a “large” record exceeds 1,000 pages. And, as the Commissioner
argued, this record is about one-half the size of the record in Lavoie.
Considering Counsel’s experience and expertise, the length of the record in this
case, Counsel’s familiarity with this case beginning with his representation of Plaintiff
before the Commissioner, the fact that Counsel identified and briefed the most salient
issues in this case before the Appeals Council, and the fact that Counsel briefed many of
the other issues before the Appeals Council, the court finds that 17.5 hours is a reasonable
amount of time to research, write, and edit Plaintiff’s Social Security Brief in this case.
Similarly, the court finds that a reasonable time to research, write, and edit a Reply
Brief in this case is seven hours. In his Reply Brief, Plaintiff addressed each issue raised
in his Social Security Brief individually, and with regard to each issue, he reiterated the
arguments from his Social Security Brief, summarized the Commissioner’s responses to
those arguments, and then explained why he believed the Commissioner’s arguments
were incorrect. This is a time-consuming and unnecessary procedure to inform the court
regarding Plaintiff’s reply to the Commissioner’s arguments. Before the court considers
Plaintiff’s Reply Brief, it will have read and considered Plaintiff’s Social Security Brief in
light of the record evidence and the Commissioner’s Response Brief in light of the record
evidence. It does not need Plaintiff to repeat those arguments. The time spent doing so is
not reasonably chargeable to the defendant.
The court found 17.5 hours is a reasonable time to research, write, and edit
Plaintiff’s Social Security Brief and 7.0 hours is a reasonable time to research, write, and
edit Plaintiff’s Reply Brief. Adding 2.0 hours reasonably charged for preliminary matters
in preparing the Complaint, and 6.15 hours for reviewing the court’s decision and briefing
the EAJA fee portion of this case, the court finds that 32.65 hours was reasonably
expended in pursuing this case before the court. At a reasonable rate of $191.21, that
results in a reasonable attorney fee of $6,243.00.
IT IS THEREFORE ORDERED that plaintiff’s “Application for Attorney Fees
under the Equal Access to Justice Act” (Doc. 23) be GRANTED in part and DENIED in
part, and that fees be awarded in the sum of $6,243.00.
IT IS FURTHER ORDERED that costs of $400.00 shall also be paid in
accordance with 28 U.S.C. § 2412(c)(1).
Dated this 23rd day of May 2017, at Kansas City, Kansas.
s:/ John W. Lungstrum
John W. Lungstrum
United States District Judge
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