Thyme v Berryhill

Filing 48

REPORT AND RECOMMENDATIONS re 38 MOTION for Attorney Fees filed by Coreen I. Thyme. Signed by Magistrate Judge Stephanie A Gallagher on 1/17/2019. (heps, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
COREEN I. T.

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v.
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COMMISSIONER, SOCIAL SECURITY1 *
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Civil Case No. PJM-17-2260

REPORT AND RECOMMENDATIONS
Plaintiff has filed a petition for attorney’s fees pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. ECF 38. Because Plaintiff did not consent to a magistrate judge for
all proceedings, her request for attorney’s fees has been referred to me, pursuant to Standing Order
2014-01, for review and to make recommendations under 28 U.S.C. § 636(b)(1)(B) and Local Rule
301.5(b)(ix). The Social Security Administration (“SSA”) opposed Plaintiff’s petition, ECF 46,
and Plaintiff filed a Reply, ECF 47. For the reasons set forth below, I recommend that Plaintiff’s
Motion for Attorney’s Fees be GRANTED in part and DENIED in part.
I.

BACKGROUND
Plaintiff filed an application for Supplemental Security Income. ECF 1. After a denial of

benefits through the administrative appeals process, on August 9, 2017, Plaintiff petitioned this
Court to review the SSA’s decision to deny her claim. Id. On August 20, 2018, I issued a Report
and Recommendations, recommending that this case be remanded to the SSA for further
proceedings. ECF 37. On September 11, 2018, Plaintiff filed the instant motion for attorney’s
fees under the EAJA, attaching an itemized billing statement.2 ECF 38. United States District

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Currently, the position of Commissioner of the Social Security Administration is vacant, and most duties are fulfilled
by Nancy A. Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the
Commissioner of Social Security.
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In her accompanying Memorandum in support of her fee petition, Plaintiff clarifies that she seeks only $14,826.00,
which reflects the $18,532.92 lodestar total, discounted by 20 percent. ECF 38-1 at 3.

Judge Peter J. Messitte issued an order adopting my Report and Recommendations on October 2,
2018. ECF 44. On October 23, 2018, I advised the parties that Plaintiff’s fee petition had been
filed prematurely, and that it would be treated as if it had been filed on December 4, 2018. ECF
45. The SSA objected to the total amount of fees requested, ECF 46, and Plaintiff submitted a
Reply, adjusting her lodestar fee to $11,530.57, and applying a 20% discount to request $9,224.46
for 46.4 hours of work. ECF 47 at 1.
II.

ANALYSIS
Under the EAJA, prevailing parties in civil actions brought by or against the United States

are entitled to an award of attorney’s fees and expenses, unless the court finds the position of the
government was substantially justified or that special circumstances make an award unjust. 28
U.S.C. § 2412(d)(1)(A); Crawford v. Sullivan, 935 F.2d 655, 656 (4th Cir. 1991). To receive
attorney’s fees, the prevailing party must submit a fee application and an itemized statement of
fees to the court within thirty days of final judgment, which is defined as commencing after the
time for appeal has run. Id.
Once the district court determines that a plaintiff has met the threshold conditions for an
award of fees and costs under the EAJA, the district court must undertake the “task of determining
what fee is reasonable.” Hyatt v. Barnhart, 315 F.3d 239, 253 (4th Cir. 2002) (quoting INS v.
Jean, 496 U.S. 154, 161 (1990)). Counsel “should submit evidence supporting the hours worked,”
and exercise “billing judgment” with respect to hours worked. Hensley v. Eckerhart, 461 U.S.
424, 433-34 (1983). “Hours that are not properly billed to one’s client also are not properly billed
to one’s adversary pursuant to statutory authority.” Id. at 434 (quoting Copeland v. Marshall, 641
F.2d 880, 891 (D.C. Cir. 1980)). Further, the district court is accorded “substantial discretion in
fixing the amount of an EAJA award,” but is charged with the duty to ensure that the final award

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is reasonable. Hyatt, 315 F.3d at 254 (quoting Jean, 496 U.S. at 163).
The SSA does not challenge Plaintiff’s right to a reasonable fee as the prevailing party in
this case. ECF 46 at 1. Thus, the only remaining issue is Plaintiff’s reasonable fee amount. In its
Opposition, the SSA objects to both Plaintiff’s hourly rate requested and the number of hours
billed. Id.
First, the SSA argues that Plaintiff’s cost-of-living adjustment to the statutory rate of
$125.00 is inappropriate, and that even if a cost-of-living adjustment is warranted, Plaintiff’s
calculation of hourly rates from $318.75 to $327.50 is incorrect. ECF 46 at 2-4. Under the EAJA,
attorney’s fees are capped at $125.00 per hour, but courts are permitted to adjust the rate to
compensate for an increase in the cost of living. 28 U.S.C. § 2412(d)(2)(A)(ii). The Fourth Circuit
has established that “Section 2412(d)(2)(A) leaves the decision of whether to award fees in excess
of the statutory cap in the sound discretion of the district judge.” May v. Sullivan, 936 F.2d 176,
178 (4th Cir. 1991). Furthermore, a refusal to grant an upward adjustment based solely on an
increase in the Consumer Price Index “does not constitute an abuse of that discretion.” Id. Here,
Plaintiff has demonstrated that a cost-of-living adjustment is appropriate, based not only on the
Consumer Price Index for the region, but also based on an increase in operating costs for Plaintiff’s
counsel’s law firm. ECF 38-1 at 3-4; 38-2 at 3-4; 47 at 1-2. Plaintiff notes that her counsel’s law
firm has incurred an increase in expenses from 2015 to 2018 for receptionist services, malpractice
insurance, and LEXIS service. ECF 47 at 1-2. The SSA has not provided any evidence to
contradict Plaintiff’s assertion of a rise in the cost of living. ECF 46 at 3.
In her Reply, Plaintiff agreed to the SSA’s proposed inflation factors, and reduced her costof-living adjustment to Defendant’s suggested calculation of hourly rates from $195.12 to $199.95,
when adjusted over time. ECF 46 at 4; ECF 47 at 1. Accordingly, because the parties agree to the

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adjusted hourly rate, I recommend that the appropriate cost-of-living adjudgment reflect the hourly
rates set forth in the Defendant’s Opposition, reflecting the $125.00 statutory rate multiplied by
the consumer price index (“CPI-U”) value for each month in which Plaintiff’s counsel worked,
and then divided by the CPI-U value for March 1996 when the EAJA raised the statutory hourly
rate to $125.00. ECF 46 at 4-5. However, in her Reply, Plaintiff incorrectly used the hourly rate
for attorneys to calculate the paralegal work, instead of the original paralegal hourly rates of
$164.00 and $127.00, to which the SSA did not object. See ECF 38-2 at 1-3; ECF 47-1; see also
See

USAO,

Attorney’s

Fees

Matrix

–

2015-2019,

https://www.justice.gov/usao-

dc/file/796471/download (setting the market rates for paralegals). Thus, I recommend a change in
the hourly rate to $164.00 and $127.00 respectively, for the two March time entries reflecting 0.75
and 1.5 hours of paralegal work. Id. Thus, the new lodestar fee amount is $11,398.21
Next, the SSA argues that Plaintiff’s request for payment of 58.2 hours of time is excessive.
ECF 46 at 5-9. Courts within this circuit have held, and I agree, that in typical Social Security
cases it is reasonable for an attorney to expend between twenty and forty hours. See, e.g., Faircloth
v. Colvin, 2:13cv156, 2014 WL 5488809, at *11 (E.D. Va. Oct. 29, 2014); Gibby v. Astrue, Civil
Case No. 2:09cv29, 2012 WL 3155624, at *5 (W.D.N.C. Aug. 2, 2012). In her Reply, Plaintiff
reduced the number of hours billed to 46.4 hours of work, after applying a 20% discount which
considered Plaintiff’s unsuccessful argument on the issue of bias, and “any inefficiencies or
shortcomings perceived by the Court.” ECF 47 at 1. While high, as described below, this number
of hours is justified based on the work performed in this particular case.
Specifically, the SSA argues that hours billed for drafting the Complaint are not
compensable. “‘Tasks of a clerical nature are not compensable as attorney’s fees.’” Gates v.
Barnhart, 325 F. Supp. 2d 1342, 1348 (M.D. Fla. 2002) (quoting Mobley v. Apfel, 104 F. Supp. 2d

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1357, 1360 (M.D. Fla. 2000)) (denying compensation for mailing a complaint and summons); see
also Magwood v. Astrue, 594 F. Supp. 2d 557, 563 (E.D. Pa. 2009) (finding that clerical tasks
should be excluded from the total attorney fee under the EAJA); Chapman v. Astrue,
2:08CV00040, 2009 WL 3764009, at *1 (W.D. Va. Nov. 9, 2009) (finding “purely clerical tasks
are ordinarily a part of a law office’s overhead and should not be compensated for at all”). Social
Security plaintiffs in this district have access to a form complaint, with just four blank spaces
requiring insertion of (1) the place plaintiff resides, (2) the plaintiff’s name, (3) the type of benefits
that were denied, and (4) the date of the final administrative decision. That complaint requires
limited factual information, incorporates no legal work, and could be completed by administrative
staff in a matter of minutes. In this case, Plaintiff’s counsel filed a more complex three page Civil
Complaint, which contains additional factual information about her case. ECF 1. Accordingly, I
do not recommend a deduction from the hours billed, but note that, in future cases, counsel need
not spend additional time drafting a substantive complaint where the form complaint is equally
effective.
The SSA also objected to Plaintiff’s billing for administrative tasks for her Motion for
Summary Judgment, and to Plaintiff rehashing the same arguments in her Reply in Opposition to
Defendant’s Motion for Summary Judgment. While Plaintiff’s briefs were lengthy, with 33 pages
for the Motion for Summary Judgment, ECF 23, and 26 pages for the Opposition to Defendant’s
Motion for Summary Judgment, ECF 34, the legal and factual issues briefed were more complex
than the typical Social Security case. I also note that a procedural skirmish ensued when the SSA
filed an identical version of its motion, with a new table of contents and without explaining the
discrepancy. Compare ECF 31, with ECF 32. In any event, given Plaintiff’s voluntary deductions
and the relative legal and factual complexity of the record, an exceptionally large award of

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attorney’s fees for 46.4 hours of work is reasonable for the work performed in this case.
Based on the foregoing, I recommend that the Court GRANT in part and DENY in part
Plaintiff’s motion for attorney’s fees, taking into account the recommended change in the paralegal
rate, and award her $9,118.57 in fees for 46.4 hours of work under the EAJA (representing a 20%
deduction to the revised lodestar total of $11,398.21).

Any objections to this Report and

Recommendations must be served and filed within fourteen (14) days, pursuant to Federal Rule of
Civil Procedure 72(b)(2) and Local Rule 301.5(b).
III.

NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions and

recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de novo
review of the determinations contained in the report and such failure shall bar you from challenging
on appeal the findings and conclusions accepted and adopted by the District Judge, except upon
grounds of plain error.

Dated: January 17, 2019

/s/
Stephanie A. Gallagher
United States Magistrate Judge

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