Dalton v. Social Security Administration

Filing 34

ORDER by Magistrate Judge Laura Fashing granting in part and denying in part 32 Motion for Attorney Fees. (cda)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
RONALD J. DALTON,
Plaintiff,
vs.

1:16-cv-00273-LF

NANCY A. BERRYHILL,1 Deputy Commissioner
for Operations of the Social Security Administration,
Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR
ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
THIS MATTER comes before the Court on plaintiff Ronald Dalton’s request for
attorney’s fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412, filed on
March 5, 2018. Doc. 32. The Commissioner filed her response to the motion on March 14,
2018. Doc. 33. Mr. Dalton did not file a reply. The parties consented to my entering a final
judgment in this case. Doc. 18. Having reviewed the parties’ submissions and being fully
advised, I find that the amount of fees requested is excessive and unreasonable. I therefore grant
the motion in part and deny the motion in part.
I.

Background Facts
Mr. Dalton filed a Title II application for disability insurance benefits and a Title XVI

application for supplemental income benefits on April 5, 2013, alleging disability since March 1,
2013, due to “leg injury resulting from being struck by car on bicycle, hip problems, [and] back
problems.” AR 26, 107, 110, 119, 1360–65. Mr. Dalton’s application for benefits was denied

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Nancy A. Berryhill, the Deputy Commissioner for Operations of the Social Security
Administration, is automatically substituted for the former Acting Commissioner of the Social
Security Administration, Carolyn W. Colvin, as the defendant in this suit. FED. R. CIV. P. 25(d).

initially and upon reconsideration, and he requested a hearing before an ALJ. AR 26–51, 54–64,
73. On August 4, 2015, ALJ Deborah Rose conducted a hearing, at which Mr. Dalton and Mary
Diane Weber, a vocational expert, testified. AR 1366–97. The ALJ issued her unfavorable
decision on December 7, 2015. AR 13–23. The Appeals Council denied Mr. Dalton’s request
for review on February 25, 2016. AR 5–7.
Mr. Dalton appealed the Commissioner’s decision to this Court, raising eleven arguments
on appeal. Doc. 20 at 1–2. The Court ultimately reversed the Commissioner’s decision and
remanded the case based on the ALJ’s failure to appropriately weigh the conclusions of
examining physicians, Drs. Rajesh and Krueger. Doc. 30.
Plaintiff now seeks attorney’s fees and costs pursuant to the Equal Access to Justice Act
(“EAJA”). The Commissioner opposes the motion on the grounds that the fees requested are
excessive and unreasonable. I agree that the fees requested are excessive and unreasonable, and
therefore grant plaintiff’s motion in part and deny it in part.
II.

Standard of Review
EAJA provides for an award of attorney fees to a plaintiff when: (1) he or she is the

prevailing party, (2) the position of the United States was not substantially justified, and (3) no
special circumstances would make the award unjust. 28 U.S.C. § 2412(d)(1)(A); Hackett v.
Barnhart, 475 F.3d 1166, 1172 (10th Cir. 2007). However, the fees should be “reasonable.”
Comm’r, INS v. Jean, 496 U.S. 154, 161 (1990); Hackett, 475 F.3d at 1168. Once the court
determines that the government’s position was not substantially justified, “then the court should
determine what fee is merited for all aspects of the litigation that deal with creating a benefit to
the claimant.” Gallaway v. Astrue, 297 F. App’x 807, 809 (10th Cir. 2008) (unpublished).
Determining the reasonableness of the number of hours billed lies within the Court’s discretion.

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Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (interpreting attorney-fee request under 42
U.S.C. § 1988); see also Jean, 496 U.S. at 161 (explaining that once a litigant has established
eligibility for fees under EAJA, “the district court’s task of determining what fee is reasonable is
essentially the same as that described in Hensley”). “[T]he fee applicant bears the burden of
establishing entitlement to an award and documenting the appropriate hours expended and hourly
rates.” Hensley, 461 U.S. at 437.
“In awarding fees under the EAJA, [courts] have a special responsibility to ensure that
taxpayers are required to reimburse prevailing parties for only those fees and expenses actually
needed to achieve the favorable result.” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 975
(D.C. Cir. 2004). The Tenth Circuit recognizes that attorneys typically do not bill a client for
every hour expended in litigation, and they should exercise “billing judgment” regarding the
amount of hours actually billed. Ellis v. Univ. of Kansas Med. Ctr., 163 F.3d 1186, 1202 (10th
Cir. 1998) (citing Hensley, 461 U.S. at 437). To show appropriate billing judgment, an attorney
should make a good-faith effort to exclude those hours from the request that are excessive,
redundant, or otherwise unnecessary. Id. The Court has a corresponding obligation to exclude
hours “not reasonably expended” from the calculation. Id. “A district court should approach this
reasonableness inquiry ‘much as a senior partner in a private law firm would review the reports
of subordinate attorneys when billing clients.’” Robinson v. City of Edmond, 160 F.3d 1275,
1281 (10th Cir. 1998) (quoting Ramos v. Lamm, 713 F.2d 546, 555 (10th Cir.1983)).

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III.

Discussion
Plaintiff requests $9,114.00 in fees for 55.22 hours of work. Doc. 32. The Commissioner

does not dispute that plaintiff was the prevailing party, nor does she argue that the agency’s
position was substantially justified. The Commissioner contends, however, that the fees
requested are excessive and unreasonable. I agree.
Courts have held the average hours required to fully brief a social security appeal in the
Tenth Circuit generally range from 20 to 40 hours. See Medina v. Astrue, 2010 WL 1254835, at
*3 (D. Colo. Mar. 26, 2010) (internal citations omitted); see also Muller v. Colvin, 14-cv-0953
SMV, Doc. 29 at 2 (D.N.M. Jan. 27, 2016) (unpublished); Wellman v. Colvin, 13-cv-1122 KBM,
Doc. 25 at 2 (D.N.M. June 15, 2015) (unpublished); Villalobos v. Colvin, 15-cv-0463 CG, Doc.
32 at 8 (D.N.M. July 12, 2016) (unpublished). More hours may be justified where the
administrative record is especially extensive or where novel or complex issues are presented.
Wellman, 13-cv-1122 KBM, Doc. 25 at 2.
Here, the hours incurred by counsel significantly exceed the average range of hours spent
on similar cases. There was nothing particularly unusual or complex about this case. The
arguments made were typical of Social Security disability appeals. Although the record was
longer than average—1,397 pages long, Doc. 14—plaintiff’s counsel represented plaintiff at the
administrative level as well as on appeal and should have been familiar with the facts and issues
raised. Accordingly, counsel’s billing of 8.25 hours to review the administrative record and

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In her Declaration of Time for EAJA Application, plaintiff’s attorney breaks her time down
into time spent during 2016—37.95 hours, and time spent in 2017and 2018—17.25 hours. Doc.
32 at 6–7. The subtotal for 2017 and 2018 is an error; it should be 16.75, not 17.25, for a total of
54.7 hours. Id. The rate for EAJA fees was $193.00 per hour in 2016, and $197.00 per hour in
2017 and 2018, “as set by the Defendant.” Id. at 2. Thus, the claimed fees would be $7,324.35
for 2016 and $3,299.75 for 2017/2018, for a total of $10,624.10. (Plaintiff’s counsel
inexplicably added the subtotals incorrectly and came up with a grand total of $10,022.60. Id. at
7.) Plaintiff’s counsel reduced her total fee by 15% to come to the $9,114.00 figure. Id.
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29.00 hours to draft the opening brief is excessive. Counsel’s experience and skill should
decrease the need for hours spent on cases in this area, which is highly repetitive. Faircloth v.
Barnhart, 398 F. Supp. 2d 1169, 1172 (D.N.M. 2005).
I have reviewed the recent motions for attorney’s fees in cases I have decided with
similar sized records and found that the requests ranged from 20.7 hours to 32.34 hours. See
Ortega v. Social Security Administration, 1:15-cv-00862-LF, Doc. 33 (D.N.M. May, 9, 2017);
Saenz v. Social Security Administration, 1:15-cv-01034-LF, Doc. 36 (D.N.M. June 30 2017);
Stanley v. Social Security Administration, 1:15-cv-00834-LF, Doc. 32 (D.N.M. July 12, 2017).
In all of the above cases, I ordered fees (based on stipulation) ranging from $3,933.00 to
$6,950.00. The administrative records ranged from 1000 pages in Saenz, 1221 pages in Ortega,
to 1180 pages in Stanley. The motion for remand in Stanley raised seven issues in 26 pages.
1:15-cv-00834-LF, Doc. 20. The motion for remand in Saenz raised four issues in 28 pages.
1:15-cv-01034-LF, Doc. 24. The motion for remand in Ortega raised three issues in 23 pages.
1:15-cv-00862-LF, Doc. 17.3 In this case, plaintiff raised eleven issues in 27 pages, Doc. 21,
and, as noted above, the record was 1,397 pages long. Compared to the other cases I have
reviewed, plaintiff’s claim for 15.2 (or, as correctly calculated, 14.7) hours of work above the
high end of the average for this district seems excessive. Even with the 15% reduction, the
claim for attorney’s fees is excessive.
Because I find that 55.2 (or 54.7) hours for the work performed is excessive, I will reduce
the hours to 35, which is near the high end of the average time necessary to brief a social security
appeal in this district. Plaintiff has not sustained her burden of establishing that this case
warranted 15.2 (or 14.7) hours more work than the high end of the average case. The hours

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Mr. Ortega’s case was voluntarily remanded after plaintiff filed his opening brief. See 1:15-cv00862-LF, Docs. 20, 21.
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incurred in 2016 are reduced from 37.95 to 23.25. At $193 per hour, the fee for 2016 equals
$4,487.25. The hours incurred in 2017 and 2018 are reduced from 16.75 to 11.75. At $197 per
hour, the fee for 2017/2018 equals $2,314.75. Thus, the total award for attorney’s fees is
$6,802.00.
IT IS THEREFORE ORDERED that plaintiff Ronald Dalton’s motion for EAJA fees
(Doc. 32) is GRANTED IN PART and DENIED IN PART. Plaintiff is awarded $6,802.00 in
attorney’s fees pursuant to 28 U.S.C. § 2412(d). See Astrue v. Ratliff, 560 U.S. 586, 591–93
(2010) (EAJA fees are paid to the prevailing party, not the attorney).
IT IS FURTHER ORDERED THAT, if plaintiff’s counsel receives attorney fees under
both the EAJA and 42 U.S.C. § 406(b) of the Social Security Act, plaintiff’s counsel shall refund
the smaller award to plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

____________________________
Laura Fashing
United States Magistrate Judge
Presiding by Consent

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