Sloan v. Astrue

Filing 39

ORDER: The court GRANTS Sloan's motion for fees and costs under the EAJA, [D.E. 35], but reduces the award to $5,400.00 in attorney's fees and $27.31 in costs. Signed by Chief Judge James C. Dever III on 10/17/2013. (Sawyer, D.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:12-CV-388-D

BRENDA JEAN SLOAN,
Plaintiff,

v.

)
)
)
)

)

ORDER

)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant. )

On August 8, 2013, the court granted Brenda Jean Sloan's ("Sloan") motion for judgment
on the pleadings, and remanded the case to the Commissioner [D.E. 33]. On September 9, 2013,
Sloan moved for attorney's fees of$12,112.09 and costs of$369.51 pursuant to the Equal Access
to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), [D.E. 35], and filed a supporting memorandum [D.E.
36]. On September 19, 2013, the Commissioner responded in opposition to the fee request [D.E.
37]. On October 2, 2013, Sloan replied [D.E. 38]. As discussed below, the court grants Sloan's
request, but reduces the award to $5,400 in attorney's fees and $27.31 in costs.
The EAJA requires the court to award fees and other expenses to a prevailing party in a civil
action brought against the United States ''unless the court finds that the position of the United States
was substantially justified or that special circumstances make an award unjust." 28 U.S.C.

§ 2412(d)(1)(A); see Pierce v. Underwood, 487 U.S. 552, 556-57 (1988); Roanoke River Basin
Ass'n v. Hudson, 991 F.2d 132, 137 (4th Cir. 1993). To determine if the government's position is
substantially justified, the court must examine whether, "from the totality of the circumstances, ...

the [Commissioner] acted reasonably in causing the litigation or in taking a stance during the
litigation." Roanoke River, 991 F.2d at 139. In other words, a position is substantially justified "if
a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Pierce,
487 U.S. at 566 n.2. The government bears the burden of proving that its position was substantially
justified. Crawford v. Sullivan, 935 F.2d 655, 658 (4th Cir. 1991).
Sloan is a prevailing party under the EAJA. See Shalala v. Schaefer, 509 U.S. 292, 300--02
(1993). Here, the ALJ misunderstood the symptoms offibromyalgia and failed to review objective
medical evidence of Sloan's fibromyalgia. [D.E. 32] 7-10. These errors were sufficient to require
remand.

See,~, Sarchetv.

Chater, 78 F.3d 305, 307--{)9 (7th Cir. 1996). TheALJ also discounted

Sloan's credibility about the severity of her symptoms and gave little weight to the opinion of
Sloan's treating physician based upon the ALJ' s improper consideration of irrelevant symptoms and
omission of relevant evidence. [D.E. 32] 10-11. In light of these errors, the Commissioner's
assertion that the ALJ' s decision was nonetheless supported by substantial evidence lacks a
reasonable basis in law or in fact and is not substantially justified. Moreover, there are no
circumstances that would make an award unjust. Accordingly, Sloan is entitled to attorney's fees
under the EAJA.
The court determines the amount of the fee award in its discretion. Pierce, 487 U.S. at 571;
Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). "Counsel for a prevailing party has a duty to
exercise 'billing judgment' to 'exclude from a fee request hours that are excessive, redundant or
otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission."' Daly v. Hill, 790 F.2d 1071, 1079 (4th Cir. 1986) (quoting
Hensley, 461 U.S. at 434). After reviewing Sloan's request for fees, the court finds that the request
for $12,112.09 for 66.6 hours of work is far higher than the typical recovery in similar cases and is
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excessive. Sloan's attorney is an experienced Social Security practitioner and a board-certified
Social Security Disability specialist in North Carolina. This case did not involve any novel issues
oflaw or abnormally complex factual circumstances, and the court's judgment only remanded the
case for further proceedings. Thus, the excessive number of hours expended and correspondingly
high fee request are not justified. After reviewing the entire record (including the parties'
arguments), the court finds that counsel is entitled to compensation for 30 hours of work at a rate of
$180 per hour, for a total fee award of $5,400.
As for the requested costs, the Commissioner objects to Sloan's request for photocopying
charges. Def.'s Resp. [D.E. 37] 8-9. Sloan bears the burden of proving that the copies were
"necessarily obtained for use in the case." 28 U.S. C. § 1920(2). Sloan cites the cost of printing the
administrative transcript, drafts of pleadings, case law, filings in the case, correspondence with
Sloan, and internal administrative copies. Pl.'s Reply [D .E. 3 8] 7. Although Sloan's reply itemizes
some of the documents that were copied, it is vague and fails to indicate why any of the requested
copies were necessarily obtained for this litigation rather than for convenience. Accordingly, the
court denies recovery of any photocopying charges. The government does not object to $27.31
requested for costs of medical records, postage, and use of PACER, and the court awards these
costs to Sloan.

In sum, the court GRANTS Sloan's motion for fees and costs under the EAJA, [D.E. 35],
but reduces the award to $5,400 in attorney's fees and $27.31 in costs.
SO ORDERED. This J1 day of October 2013.

€1"" ..t~"""

J
SC.DEVERlli
Chie United States District Judge
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