Cline v. Colvin

Filing 36

ORDER granting in part and denying in part 30 motion for attorney fees. Fees in the amount of $9,898.52, representing 53.7 hours of attorney time at the rate of $184.33 per hour, are awarded pursuant to the EAJA. Plaintiff's alternative request for fees pursuant to 42 U.S.C. § 406(b) is denied without prejudice to counsel's right to renew this request if past due benefits are awarded. Signed on 3/18/2015 by Magistrate Judge Sarah W. Hays. (Bliss, Sue)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION

CAROLYN E. CLINE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 13-04073-CV-C-SWH

ORDER
Pending before the Courts is plaintiff's Motion for Award of Attorney’s Fees Pursuant to
the Equal Access to Justice Act, or Alternatively, Pursuant to 42 U.S.C. ' 406(b). (Doc. #30)
Plaintiff seeks approval for attorney fees under the Equal Access to Justice Act (EAJA) in the
amount of $9,898.52 which represents 53.7 hours of attorney time at the rate of $184.33 per
hour. (Doc. #31) Defendant does not object to the payment of EAJA fees or the hourly rate, but
claims that the total number of hours for which compensation is sought is excessive. (Doc. #32 at
1) Defendant requests that the Court reduce plaintiff's fees by 16.75 hours to 36.95 hours of
attorney time which defendant claims would compensate counsel for 20 hours of briefing time
plus 16.95 hours for the reply brief, oral argument and administrative tasks. (Doc. #32 at 7)
The EAJA allows reimbursement only for reasonable attorney fees and expenses. See 28
U.S.C. § 2412(d)(2)(A).

The court has discretion in determining the amount of a fee award,

including the reasonableness of the hours claimed by the prevailing party. See Kawasaki v.
Astrue, No. C 07-4930 PVT, 2008 WL 2774380, at *2 (N.D. Cal. July 14, 2008); Myer v.
Barnhart, No. 04-4077-JAR, 2005 WL 3084898, at *1 (D. Kan. Nov. 3, 2005).
1

See also

Commissioner, Immigration & Naturalization Serv. v. Jean, 496 U.S. 154, 161 (1990)(the district
court determines the reasonableness of the fee under the EAJA using the standards established by
Hensley v. Eckerhart, 461 U.S. 424 (1983)).
Defendant first argues that the total number of hours for which compensation is sought is
excessive and that the typical number of hours spent on a disability claim under the Social
Security Act is between fifteen and forty hours. (Doc. #32 at 2-3) Attached to the defendant’s
brief are four orders issued by other judges in this district discussing awards of attorney fees in
Social Security cases.1 The Court has reviewed those opinions. Two of the cited opinions were
issued after the court began filing pleadings electronically, and thus, the Court is able to review
the case files and briefs for those opinions.2
In Teter v. Astrue, Case No. 09-0492-CV-W-SOW, counsel sought to be reimbursed for
83 hours of work at a rate of $197.16 per hour. The court reduced the time for which fees were
awarded to 34.5 hours.

Plaintiff's brief in the Teter case was eleven pages long and the

"Discussion" section did not set out any headings as to the issues being addressed.3 Likewise, in
Blakey v. Apfel, Case No. 99-3181-CV-S-2-SSA-ECF, the court reduced the hours for which
EAJA payments would be made from 30.75 to 15.375 hours. A review of the brief in that case
reflects that excluding the cover and titles pages and the certificate of service, the brief itself was
only four and one-half pages long.

1

The attached orders are from Fritsche v. Apfel, Case No. 99-0623-CV-W-SOW-SSA; Teter v.
Astrue, Case No. 09-0492-CV-W-SOW; Blakey v. Apfel, Case No. 99-3181-CV-S-2-SSA-ECF;
and Brewer v. Apfel, Case No. 99-0202-CV-W-DW.
2
Two of the prior opinions, Fritsche v. Apfel, Case No. 99-0623-CV-W-SOW-SSA, and Brewer
v. Apfel, Case No. 99-0202-CV-W-DW, were decided before pleadings were filed in the
CM/ECF system. Thus, the case files connected to these opinions were unavailable for review.
3
It appears that the argument in Teter centered around the failure of the ALJ to consider the
treating doctor's revised opinion, submitted to the Appeals Council after the ALJ hearing.
2

Defendant also cites the court’s decision in Thomas v. Astrue, No. 10-1255-CV-W-FJG,
2012 WL 1564291 (W.D. Mo. Apr. 25, 2012), as being instructive given the court’s reduction of
the attorney fee award from $5,500.00 (37.25 attorney hours) to $3,289.55 (18.625 attorney
hours). A review of that case reflects that plaintiff’s counsel initially sought an attorney fee
award of $6,579.10. (Doc. #16) After conferring, counsel for plaintiff and defendant agreed to
an award under the EAJA in the amount of $5,500.00. (Doc. #17) Despite the agreement of
counsel for the Commissioner that this award was reasonable, the court reduced the award
further, finding in part that the brief was only twenty-one pages in length and included a
substantial amount of “boilerplate” law. (Doc. #18 at 4)
While defendant contends that the four arguments raised by counsel for plaintiff Cline are
not novel or unique, plaintiff’s counsel did not merely cite the case law and regulations, but
instead refers to the specific pages in the transcript which provide the factual support for each
argument raised. Plaintiff’s brief is 35 pages long with 49 footnotes. It is well written and the
medical evidence is summarized not simply by date but by medical impairments. In fact,
defendant’s brief adopted the facts set forth in the factual summary section of plaintiff’s brief,
except for any additions or exceptions noted in the argument portion of defendant’s brief.4 (Doc.
#20 at 2) A comparison of the often perfunctory briefing in other cases from this district, such as
Teter, Blakey and Thomas, with the exhaustive analysis presented by plaintiff's counsel in this
case suggests that plaintiff’s request is not unreasonable or excessive. Accordingly, it is

4

In the Teter case cited by defendant, the plaintiff’s brief failed to fully summarize the
administrative record, thereby requiring the defendant to spend a portion of the brief setting forth
the medical evidence of record. (See Case No. 09-0492-CV-W-SOW, doc. #16 at 2-8)
Likewise, in Thomas v. Astrue, the Commissioner’s brief contained a section setting forth
additional facts to supplement those contained in the plaintiff’s brief. (See Case No. 10-1255CV-W-FJG, doc. #13 at 2-5)
3

ORDERED that plaintiff's Motion for Award of Attorney’s Fees Pursuant to the Equal
Access to Justice Act, or Alternatively, Pursuant to 42 U.S.C. ' 406(b), doc. #30, is granted in
part and denied in part. Fees in the amount of $9,898.52, representing 53.7 hours of attorney
time at the rate of $184.33 per hour, are awarded pursuant to the EAJA. Plaintiff’s alternative
request for fees pursuant to 42 U.S.C. § 406(b) is denied without prejudice to counsel’s right to
renew this request if past due benefits are awarded.

/s/ Sarah W. Hays
SARAH W. HAYS
UNITED STATES MAGISTRATE JUDGE

4