Swager v. Astrue
Filing
23
ORDER granting 20 Plaintiff's motion for attorney fees. Signed on 7/5/11 by District Judge Greg Kays. (Francis, Alexandra)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
LINDA SWAGER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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No. 09-05050-CV-SW-DGK-SSA
ORDER GRANTING APPLICATION FOR ATTORNEYS’ FEES
This case arises out of the Commissioner of Social Security’s decision to deny Plaintiff
Linda Swager’s application for Supplemental Security Income benefits based on disability. On
February 22, 2011, the Court ruled that the Commissioner’s decision was not supported by
substantial evidence on the record and ordered the case to be remanded for further proceedings.
Now before the Court is Plaintiff’s Application for Attorney’s Fees Under the Equal
Access to Justice Act (doc. 20). Plaintiff’s seeks attorney’s fees totaling $5,960.70 for 34.70
hours of work1 and reimbursement of the $350 filing fee. The Commissioner opposes the
request, arguing (1) the application should be denied because the Commissioner’s position was
substantially justified; (2) the requested fee is unreasonable; (3) that any fee award should be
made payable directly to the Plaintiff, not her attorney; and (4) reimbursement of the filing fee
should be made from the judgment fund. Holding that the Commissioner’s position was not
substantially justified and that the requested fee is reasonable, Plaintiff’s application is
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Six hours were spent reviewing Defendant’s response and researching, writing, and editing Plaintiff’s reply brief.
This time is compensable under the Equal Access to Justice Act (“EAJA”). See Kelly v. Bowen, 862 F.2d 1333,
1334 (8th Cir. 1988) (holding time spent preparing EAJA fee application compensable); see also United States v.
Estridge, 797 F.2d 1454, 1459 (8th Cir. 1986) (rejecting distinction between attorneys fees incurred in litigating the
merits of the case and on collateral matters).
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GRANTED. The fee award will be made directly to the Plaintiff, and reimbursement of the
filing fee will be made from the judgment fund.
Standard
In order to be awarded fees under the Equal Access to Justice Act (“EAJA”), the plaintiff
must establish that she was the prevailing party. Once the plaintiff has done so, “the burden
shifts to the government to prove that it was substantially justified in asserting its position.”
Huett v. Bowen, 873 F.2d 1153, 1155 (8th Cir. 1989). A position is substantially justified as long
as “a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.”
Bah v. Cangemi, 548 F.3d 680, 683-84 (8th Cir. 2008) (quotation omitted).
The amount of an award is determined by the specific facts of the case. Hensley v.
Eckerhart, 461 U.S. 424, 429 (1983). The Supreme Court has identified twelve factors to
consider in determining the reasonableness of a fee, id. at 430 n.3, and these factors are relevant
to determining an award in Social Security cases. See Roak v. Barnhart, 221 F. Supp. 2d 1020,
1023 (W.D. Mo. 2002). They include the novelty and difficulty of the questions involved, the
customary fee, whether the fee is fixed or contingent, the amount involved and the results
obtained, and awards in similar cases. Id. The burden of establishing the reasonableness of a fee
request rests with the applicant. S.E.C. v. Zahareas, 374 F.3d 624, 630-31 (8th Cir. 2004).
Analysis
A.
Plaintiff is the prevailing party and the Commissioner’s position was not
substantially justified.
The Commissioner does not dispute that Plaintiff is the prevailing party, but argues his
position was substantially justified. The Court reversed the Commissioner’s decision because it
found the ALJ had incorrectly determined Plaintiff’s residual functional capacity.
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The
Commissioner contends that his position was substantially justified because a determination of
residual functional capacity “is based on all relevant evidence and not just the medical
evidence,” and “the Commissioner’s position that the RFC accounted for the credible limitations
was substantial [sic] justified.” The Court is not persuaded by this argument.
The error in the ALJ’s decision stems from the fact that the ALJ stated she gave “great
weight” to Dr. Andrew’s opinion, but then completely ignored, without explanation, Dr.
Andrew’s opinion that the Plaintiff could not climb, balance, or stoop. The ALJ also failed to
question the vocational expert about what impact a complete inability to climb, balance, or stoop,
would have on her ability to be employed. The Court noted this was problematic because, as
Social Security Ruling 96-9p observes, “A complete inability to stoop would significantly erode
the unskilled sedentary occupational base and a finding that the individual is disabled would
usually apply . . .” 1996 WL 374185, at *8 (July 2, 1996). Nothing in the record suggested any
reason to summarily discount Dr. Andrew’s opinion, so the ALJ’s failure to address this issue
could not be dismissed as a mere deficiency in opinion writing. Accordingly, the Court holds
that the Commissioner’s assertion that the ALJ appropriately determined Plaintiff’s RFC has no
reasonable basis in law and fact and was not substantially justified.
B.
The requested attorney’s fees are reasonable.
Next, the Commissioner suggests that the amount of fees requested are unreasonable
given the circumstances of this case.
The Commissioner observes that the Court denied
Plaintiff’s motion to proceed in forma pauperis, and contends “it is unreasonable to expect the
Commissioner to pay the attorney fees for an unsuccessful motion.” The Commissioner also
objects to having to pay for all of the time Plaintiff’s counsel spent writing Plaintiff’s brief
because the Court rejected about half of Plaintiff’s arguments.
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“Generally, ‘a fee award presumptively encompasses all aspects of the civil action’ in the
absence of ‘unreasonably dilatory conduct by the prevailing party in any portion of the litigation,
which would justify denying fees for that portion.’” Rodgers v. Astrue, No. 09-1214, 2011 WL
721528, at *3 (D. Minn. Feb. 3, 2011) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434-35
(1983)). Like other fee-shifting statutes, the EAJA favors treating a case as an inclusive whole,
rather than as atomized line-items. Commissioner, INS v. Jean, 496 U.S. 154, 161-162 (1990).
Even when the Commissioner prevails against some of the plaintiff’s arguments, the
Commissioner’s position may not be substantially justified if it was unreasonable as to the issue
that required remand. Rodgers, 2011 WL 721528, at *3. In the present case the Court is
unmoved by the fact that Plaintiff’s did not prevail on every motion and every argument.
The
Court has previously rejected the suggestion that counsel should be compensated only for a
single argument that succeeds in winning remand. Glenn v. Astrue, No. 10-06038-CV-SJ-DGKSSA, 2011 WL 2135454, at *2 (W.D. Mo. May 31, 2011). “It is not the role of the court to look
back and, with the advantage of hindsight, criticize counsel for being overly zealous in bringing
facts and legal issues to the attention of the court.” Carlson v. Astrue, 500 F. Supp. 2d 1174,
1179 (S.D. Iowa 2007). Much of Plaintiff’s brief is taken up with summarizing the record,
which has to be done regardless of the number of arguments made, and the total time spent
preparing this case, including the unsuccessful arguments, was 28.70 hours, which is
reasonable.2 Accordingly, the Court will award the total amount requested, $5,960.70.
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This figure does not include the six hours spent responding to the objections to the fee request, which was also
reasonable.
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C.
The fee award will be made directly to the Plaintiff, and reimbursement of the filing
fee will be made from the judgment fund.
Finally, the parties do not dispute that in accordance with Astrue v. Ratliff, any attorneys’
fees are payable to Plaintiff as the litigant and subject to offset to satisfy any pre-existing debt
that the litigant owes to the United States. Defendant recognizes that Plaintiff has signed a fee
agreement assigning any fee under the EAJA to Plaintiff’s counsel, and that if Plaintiff does not
owe any debt to the United States subject to offset, the fee will be made payable to Plaintiff’s
attorney based on the assignment. The parties also agree that reimbursement of the $350 filing
fee should be paid from the Judgment Fund.
Conclusion
For the foregoing reasons the Court holds the Commissioner’s position was not
substantially justified and the requested fee is reasonable. Plaintiff is awarded $5,960.70 to be
made payable to the Plaintiff. Plaintiff shall also be reimbursed her $350 filing fee, to be paid
from the Judgment Fund.
IT IS SO ORDERED.
Date: July 5, 2011
/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT
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