Moore v. Commissioner of Social Security

Filing 26

REPORT AND RECOMMENDATIONS re 23 MOTION for Attorney Fees and Costs Pursuant to the Equal Access to Justice Act (EAJA) filed by Gidget E. Moore. It is RECOMMENDED that Plaintiffs Motion be granted in part and that plaintiff be awarded an attorney fee of $ 7,389.90, and costs in the requested amount of $5.85. Objections to R&R due by 4/18/2016. Signed by Magistrate Judge Norah McCann King on 3/31/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
GIDGET E. MOORE,
Plaintiff,
vs.

Civil Action 2:14-CV-455
Judge Marbley
Magistrate Judge King

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION

This action was instituted under the provisions of 42 U.S.C.
§§ 405(g), 1383(c), for review of a final decision of the Commissioner of
Social Security denying plaintiff’s applications for disability insurance
benefits and supplemental security income. On September 28, 2015, the Court
reversed the decision of the Commissioner pursuant to Sentence 4 of 42
U.S.C. § 405(g) and remanded the matter for further consideration. Opinion
and Order, ECF No. 21. This matter is now before the Court on Plaintiff
Gidget E. Moore’s Motion for Award of Attorney Fees and Costs pursuant to
the Equal Access to Justice Act, ECF No. 23 (“Plaintiff’s Motion for Fees”).
The Commissioner opposes Plaintiff’s Motion for Fees, Defendant’s Response
to Plaintiff’s Petition for Attorney Fees, ECF No. 24 (“Commissioner’s
Response”), and plaintiff has filed a reply, Plaintiff’s Gidget E. Moore’s
Reply to Defendant’s Memorandum in Opposition to Plaintiff’s Petition for
Attorney Fees, ECF No. 25 (“Reply”).
The Equal Access to Justice Act (“EAJA”) provides in pertinent part:
Except as otherwise specifically provided by statute, a court
shall award to a prevailing party other than the United States
fees and other expenses ... incurred by that party in any civil
action ... brought by or against the United States ... unless

1

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). In order to recover attorney fees under the EAJA,
a plaintiff must satisfy three conditions: (1) she must be a “prevailing
party”; (2) the Government’s opposing position must have been without
substantial justification; and (3) there must be no special circumstances
that warrant denying relief. DeLong v. Comm’r of Soc. Sec., 748 F.3d 723,
(6th Cir. 2014)(citing Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840
(6th Cir. 2006), and 28 U.S.C. §2412(d)(1)(A)).
In the case presently before the Court, the Commissioner does not deny
that plaintiff qualifies as a prevailing party, nor does the Commissioner
contend that there exist special circumstances that would render an award
under the EAJA unjust. Instead, the Commissioner contends that her position
in initially denying benefits and defending that denial before this court
was “substantially justified” within the meaning of the EAJA.
1.

Substantial Justification

The United States Court of Appeals for the Sixth Circuit has
considered the meaning of the term “substantially justified” for purposes
of the EAJA:
The
government’s
position
under
§2412(d)(1)(A)
is
“substantially justified if it is ‘justified in substance or in
the main’ –- that is, justified to a degree that could satisfy
a reasonable person.” ... [A] position can be justified even
though it is not correct, and we believe it can be substantially
(i.e., for the most part) justified if a reasonable person could
think it correct, that is, if it has a reasonable basis in law
and fact.
United States v. Real Property Located at 2323 Charms Road, 946 F.2d 437,
440 (6th Cir. 1991) (citations omitted). In making this determination, a
court may not resolve conflicts in evidence.

2

Ulman v. Comm’r of Soc. Sec.

693 F.3d 709, 713(6th Cir. 2012). An order of remand pursuant to Sentence
4 of 42 U.S.C. § 405(g) is not alone “a proper basis for the allowance of
fees and expenses under” the EAJA.

Couch v. Sec. of Health & Human Servs.,

749 F.2d 359, 360 (6th Cir. 1984)(per curiam).
The administrative law judge found that plaintiff had the mental
residual functional capacity (“MRFC”) to perform jobs that require no more
than “occasional interaction with the public; no more than simple,
repetitive tasks performed with the need for only regularly scheduled
breaks and with the ability for either production-oriented or goal-oriented
work.” PageID 71.
limitations

on

However, this MRFC determination fails to include

maintaining

concentration,

persistence

or

pace

and

limitations on production or quota requirements, even though those
limitations were included in the opinions of the reviewing state agency
psychologists, to whose opinions the administrative law judge accorded
“significant adjudicative weight.” See PageID 71. In reversing the decision
of the Commissioner and remanding the matter for further consideration,
the Court concluded that the administrative law judge erred in this regard:
Thus, this Court is left with an inability to discern whether
the ALJ discounted portions of these three State agency
consultants’ opinions for valid or invalid reasons, or simply
ignored them altogether. See Stacey [v. Comm’r of Soc. Sec.],
451 F.App’x [517] 519 [(6th Cir. 2011)]. Such omissions
constitute procedural error according to the Sixth Circuit.
Opinion and Order, PAGEID# 1465-66. The error was compounded, in the Court’s
view, when the administrative law judge expressly found that plaintiff is
“moderately impaired” in the area of concentration, persistence and pace,
but where the MRFC failed to incorporate that impairment. Id. at PAGEID
1466.
In arguing that its position was substantially justified, the

3

Commissioner characterizes the administrative law judge’s error as “solely
one of articulation.”
disagrees.

The

Commissioner’s Response, PAGEID# 1501. This Court

administrative

law

judge’s

decision

was

internally

inconsistent and utterly failed to comply with well-established governing
principles. The Court therefore concludes that the position of the
Commissioner was not substantially justified and that an award of fees under
the EAJA is warranted.
2.

Reasonableness of Itemized Hours

Having determined that an attorney fee should be awarded under the
EAJA, the Court must also determine what fee is reasonable.

See 28 U.S.C.

§ 2412(d)(2)(A); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (The
plaintiff has the burden of proving that the fees requested under the EAJA
are in fact reasonable.).

Plaintiff seeks an attorney fee of $7,975.80

for 42.10 hours of work compensated at the rate of $189.00 per hour.
Plaintiff’s Motion for Fees. 1 The Commissioner does not challenge the
hourly rate sought by plaintiff, but contends that the hours for which
compensation is sought should be reduced because they include “clerical
and other tasks that are not compensable under the EAJA,” Commissioner’s
Response, PAGEID# 1504, mix multiple tasks under the same entry, id. at
PAGEID# 1505, and reflect excessive amounts of time on certain tasks, id.
The Commissioner first complains that tasks such as “receipt and
review” of e-mails from the Court, “receipt and download” of the transcript,
and “check court docket, print same” are noncompensable clerical tasks.
Id. at PAGEID# 1504 (referring to entries in Itemization of Time, ECF No.
23-3, attached to Plaintiff’s Motion for Fees). This Court disagrees. In

1

Plaintiff also seeks $5.85 in reimbursable costs, Plaintiff’s Motion for Fees,
PAGEID# 1469, and the Commissioner does not oppose that request. See generally

4

an era of electronic filing, it would be inefficient and indeed wasteful
to require an attorney to segregate from his or her time records the
miniscule amount of time necessary to send an email, or to download and
print an electronic file. But see Williams v. Comm’r of Soc. Sec., No.
1:12-cv-358, 2013 WL 5707792, *3 (N.D. Ohio Oct. 18, 2013)(“[D]ownloading,
mailing and receiving documents” by an administrative assistant are not
separately compensable under the EAJA).
In a somewhat related argument, the Commissioner suggests that the
hours

itemized

by

plaintiff’s

counsel

should

be

reduced

because

itemizations “mix multiple tasks under the same entry.” Commissioner’s
Response, PAGEID# 1505 (referring to, e.g., “‘review final Draft Stmt. Of
Errors, create pdf, file with Court, receipt email re: NEF (Doc #11)’ (Doc.
23-3;PageID 1489”). Because these entries are not duplicative and do not,
for the reason state supra, intermingle compensable and noncompensable
work, the Court will not reduce plaintiff’s itemized hours in this regard.
Finally, the Commissioner contends that the hours associated with
certain tasks are excessive. In particular, the Commissioner points to 6.45
hours relating to the drafting and filing of the Complaint and IFP
application, .45 hours relating to the drafting of plaintiff’s EAJA
affidavit, 1.2 hours relating to the drafting of counsel’s EAJA affidavit,
and .4 hours relating to the editing of the EAJA draft and preparation of
exhibits for filing. Id. at PAGEID# 1505-06. In reply, plaintiff “relies
solely

upon

the

Court’s

judgment”

and

declines

to

“attempt[]

to

artificially restrain that judgment in one direction or the other.” Reply,
PAGEID# 1514.

Commissioner’s Response.

5

This Court agrees that 6.45 hours is an excessive amount of time spent
drafting and filing the standard Complaint and IFP application; the Court
deems 3.0 hours spent in this regard as generous. However, the Court does
not find excessive the .45 hours spent drafting of plaintiff’s EAJA
affidavit, or the 1.2 hours spent drafting counsel’s EAJA affidavit. These
documents are not form documents but are, rather, tailored to this
litigation.

Cf.,

e.g.,

Lemmon

v.

Commissioner

of

Social

Security,

2:13-cv-410, Affidavit of Tracey Lemmon, ECF No. 27-1; Affidavit of
Counsel, ECF No. 27-2. Similarly, the Court does not deem excessive the
.4 hours spent editing the EAJA application and preparing the associated
exhibits for filing.
The Court will therefore reduce the hours itemized by 3.0 hours, for
a total of 39.10 hours of work, compensated at the rate of $189.00 per hour.
Plaintiff is also entitled to recover the requested $5.85 in reimbursable
costs.
It is therefore RECOMMENDED that Plaintiff Gidget E. Moore’s Motion
for Award of Attorney Fees and Costs pursuant to the Equal Access to Justice
Act, ECF No. 23, be granted in part and that plaintiff be awarded an attorney
fee of $ 7,389.90, and costs in the requested amount of $5.85.

If any party seeks review by the District Judge of this Report and
Recommendation, that party may, within fourteen (14) days, file and serve
on all parties objections to the Report and Recommendation, specifically
designating this Report and Recommendation, and the part thereof in
question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1);

6

F.R. Civ. P. 72(b). Response to objections must be filed within fourteen
(14) days after being served with a copy thereof. F.R. Civ. P. 72(b).
The parties are specifically advised that failure to object to the
Report and Recommendation will result in a waiver of the right to de novo
review by the District Judge and of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v.
Arn, 474 U.S. 140 (1985); Smith v. Detroit Federation of Teachers, Local
231 etc., 829 F.2d 1370 (6th Cir. 1987); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).

Date: March 31, 2016

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

7