Wilson v. Commissioner of Social Security

Filing 16

MEMORANDUM & ORDER granting in part and denying in part 13 Motion for Attorney Fees. Signed by Senior Judge Thomas B. Russell on 1/3/2012. cc:counsel (KJA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CASE NO. 5:11-CV-00026-R
LORI WILSON

PLAINTIFF

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security Administration

DEFENDANT

MEMORANDUM AND ORDER
This matter comes before the Court on Plaintiff Lori Wilson’s application for attorney’s
fees under the Equal Access to Justice Act (DN 13). The Government has responded (DN 14)
and Plaintiff has replied (DN 15). This matter is now ripe for adjudication. For the reasons that
follow, Plaintiff’s motion is GRANTED IN PART AND DENIED IN PART.
BACKGROUND
On August 12, 2011, Magistrate Judge King issued a report and recommendation urging
reversal of a social security disability benefits decision regarding Plaintiff. Report &
Recommendation, DN 9. The Government did not object and the Court entered an order
adopting the report and recommendation on September 16, 2011. Order, DN 10.
Plaintiff’s attorney now moves for an award of attorneys’ fees under the Equal Access to
Justice Act (“EAJA”). He has attached records and an affidavit indicating he worked 33.9 hours
on the matter at a rate of $125.00 an hour, for a total of $4,237.00. He also claims court costs in
the amount of $350.00. The Government has responded to the motion asking that Plaintiff
counsel’s fees be adjusted downward, as the time he spent on certain tasks appears inflated. The
work to which the Government objects is as follows:

Date
5/03/11
6/28/11
6/29/11

Hours
2.10 hrs
4.50 hrs
8.50 hrs

7/01/11

10.50 hrs

...
9/27/11

2.50 hrs

10/24/11

3.50 hrs

Description
Review order and review administrative record
File study
Research, file study, and begin fact and law summary and
motion for summary judgment
Prepare fact and law summary and motion for summary
judgment and more research
Preparation of motion for EAJA fee, prepare motion for
extension
Preparation of motion for EAJA fee

DN 13-3 (formatting altered). The Government asks that Plaintiff counsel’s 25.6 hours worked
between May 3, 2011 and July 1, 2011, be reduced to 20 hours. In addition, the Government
states Plaintiff counsel’s time spent preparing the motion for EAJA fees should be cut from 6.0
hours to 3.0 hours.
STANDARD
Under the EAJA, “eligibility for a fee award in any civil action requires: (1) that the
claimant be a ‘prevailing party’; (2) that the Government's position was not ‘substantially
justified’; (3) that no ‘special circumstances make an award unjust’; and, (4) . . . that any fee
application be submitted to the court within 30 days of final judgment in the action and be
supported by an itemized statement.” Commissioner, I.N.S. v. Jean, 496 U.S. 154, 158 (1990).
The applicant for fees under the EAJA “bears the burden of establishing entitlement to an award
and documenting the appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461
U.S. 424, 437 (1983). The applicant must exercise “billing judgment” with regard to the hours
worked. Id. Fees that are redundant, excessive, otherwise unnecessary, or inadequately
undocumented may be excluded by the reviewing court. See id. at 434. “A district court has
broad discretion when determining whether fees should be awarded under the EAJA and its
decision will only be overturned if the district court abuses its discretion.” Vanner v. Comm’r of

Social Sec., No. 09–CV–12082, 2011 WL 2650257, at *1 (E.D. Mich. July 6, 2011) (citing
Damron v. Comm’r of Soc. Sec., 104 F.3d 853, 855 (6th Cir. 1997)).
DISCUSSION
Courts routinely use a lodestar approach to award attorney fees under the EAJA,
“multiplying the number of hours reasonably expended on the litigation times a reasonable
hourly rate.” Blum v. Stenson, 465 U.S. 886, 888 (1984) (quoting Blanchard v. Bergeron, 489
U.S. 87, 94 (1989)). The Government does not contest the hourly rate requested by Wilson’s
attorney, but instead seeks to subtract the number of hours he has billed.
Between May 3, 2011 and July 1, 2011, Plaintiff counsel documents 25.6 hours expended
on reviewing the social security orders and administrative record, studying the social security
file, researching, and writing the law summary and motion for summary judgment. DN 13-3.
The Government points out that the administrative transcript is 437 pages in length and the
accompanying brief for summary judgment is only 14 pages long. It further states Plaintiff’s
brief only contains six pages of legal analysis, one of which is a block quotation from a prior
decision. Accordingly, the Government asserts the time billed by Plaintiff’s counsel should be
reduced to 20.0 hours.
In his reply, Plaintiff’s counsel submits additional documentation specifying the research
he conducted on Westlaw’s database and citing additional cases he reviewed by did not cite
within his brief. DN 15-1 at 1-4; DN 15-2 at 1. He continues, stating the decision by the ALJ
and the magistrate court judge turned on the definition of “deficiencies in adaptive functioning,”
a nuanced phrase within the lexicon of social security law. Thus, Plaintiff’s counsel says he
expended the time he billed on the review of both the record and the law surrounding this legal
issue.

The Court believes Plaintiff’s counsel has met his burden. His brief for summary
judgment includes extensive citations of the administrative record, recounting in detail Plaintiff’s
cognitive deficiencies. Many of the facts he documents are pulled not from doctors’ records, but
from other sources that could have been overlooked without a searching examination. DN 7
(citing employment records and earnings records). In the legal analysis portion of his brief,
Plaintiff’s counsel describes five possible reasons to reverse the ALJ’s decision, all involving
mixed questions of law and fact. He has also provided a number of legal decisions included in
his research but not cited in his brief, with corresponding notes supporting the claim that he
examined these issues thoroughly. The Court cannot say these efforts were an unreasonable use
of time.
With respect to Plaintiff counsel’s preparation of this motion requesting EAJA fees, the
Government questions his submission of 6.0 hours for reimbursement. It notes the brevity of the
motion and reply, and asks the Court to reduce the time requested to 3.0 hours. Plaintiff’s
counsel does not address this portion of Government’s motion in his reply. Therefore, the Court
will grant this part of Government’s request.
Finally, both parties concede that any award of EAJA fees should be made payable to
Plaintiff and not to her counsel. The Court will craft its order to reflect this agreement.
IT IS HEREBY ORDERED:
(1)

Attorneys’ fees in the amount of $3,862.50 are granted to Plaintiff Lori Wilson.

(2)

Costs in the amount of $350.00 are granted to Plaintiff Lori Wilson.

(3)

The Commissioner is granted 30 days from the date of this Order to determine
whether the EAJA fee award is subject to an offset for any pre-existing debt owed
to the United States Government.

(4)

Defendant shall issue a check payable to Plaintiff, in the amount of $4,212.50
minus any offset for any pre-existing debts owed by Plaintiff to the United States.
The Commissioner shall mail the check directly to Plaintiff’s attorney at the
following address: Craig Housman 109 South Fourth Street, P.O. Box 1196,
Paducah KY 42002-1196.

Cc: Counsel

January 3, 2012