Shelby v. Social Security Administration
OPINION AND ORDER by Magistrate Judge Kimberly E. West : Granting 26 30 33 Motion for Attorney Fees. (acg, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
KATHRYN SHELBY, on behalf of
B.A.W., a minor,
CAROLYN W. COLVIN, Acting
Commissioner of Social
Case No. CIV-15-174-KEW
OPINION AND ORDER
This matter comes before the Court on Claimant’s Motion for
Attorney Fees Pursuant to the Equal Access to Justice Act (Docket
By Order and Opinion entered September 9 2016, this
Court reversed the decision of the Commissioner to deny Claimant’s
application for supplemental security income under Title XVI of the
Social Security Act and remanded the case for further proceedings.
In the Motion, Claimant seeks attorney’s fees for 36.90 hours
of time expended by his attorney at the stipulated fee rate for a
total request of $7,106.00 under the authority of the Equal Access
to Justice Act (“EAJA”), which reflects a voluntary reduction of
Additionally, Claimant requests compensation in the
amount of $2,033.00 for filing a reply through a supplemental
motion, which also reflects a voluntary reduction.
Commissioner objected to the reasonableness of the fee requested,
Claimant filed a reply to the response to the supplemental request.
In an effort to seek compensation for the preparation of this
reply, Claimant filed the second supplemental request, seeking fees
in the amount of $1,273.00, which Claimant also states reflects a
supplemental fee request.
The Commissioner contends the positions reflected in the ALJ’s
decision were substantially justified and, therefore, Claimant
should not recover EAJA compensation.
EAJA provides that a
prevailing party other than the United States shall be awarded fees
and costs unless the court finds the position of the United States
was substantially justified or that special circumstances make an
28 U.S.C. § 2412(d)(1)(A).
With respect to EAJA
applications in Social Security cases, the Commissioner has the
burden of showing that her position was substantially justified.
Hadden v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988).
Commissioner must prove that, even if her position is incorrect,
her case had a reasonable basis in law and in fact.
establish substantial justification, the Commissioner must show
that there is a genuine dispute and that reasonable people could
differ concerning the propriety of a particular agency action.
Pierce v. Underwood, 487 U.S. 552, 565 (1987).
“position can be justified even though it is not correct . . . and
it can be substantially (i.e., for the most part) justified if a
reasonable person could think it correct
accordance with this Court’s decision.
. . .”
Id. at 566 n.2.
The Commissioner contends
her position represented a “reasonable litigation position” when
she argued that the ALJ’s lack of explanation for the rejection of
the position that Claimant met a listing was harmless error.
fact, the Commissioner argued that the record did not support such
a finding - a position not explained in the ALJ’s decision.
employment of boilerplate rejection language in the ALJ’s decision
without some reference to the record is not a reasonable position
to take in the appeal.
The cases cited by the Commissioner to
support such a position did not include a decision with a complete
lack of supported reasoning as was present in this case.
The Commissioner also challenges the reasonableness of the fee
attributable to “reading-and-notetaking hours” to 3.7 hours; (2)
the 27.10 hours expended on briefing the opening and reply briefs
to at least 13.55 hours; and (3) a reduction of 25% due to
Claimant’s limited success in the appeal.
Claimant contends the
Commissioner does not object to specific items in the attorney’s
time and expense record but rather makes blanket objections to
argue a standard number of hours which a Social Security case
This Court does not find the time in reviewing the record to
be particularly excessive.
However, given the size of the briefs
(10 pages for the opening brief and four pages for the reply) and
the lack of complexity of the issues presented, the preparation
time on the briefing is considered a bit bloated.
asserted several issues in the briefing but it should have been
apparent that most were not supported legally or factually.
result, the preparation time for the briefing will be reduced by
25% to accommodate these excessive billings. This Court calculates
the number of hours expended for the preparation of these documents
differently than the Commissioner.
A review of the time and
expense records indicate Claimant’s counsel expended 18.9 hours in
the preparation of the brief in chief and 8.1 in the preparation of
the reply brief for total charges of $5,130.00.
amount will be reduced to $3,847.50.
The Commissioner also challenges the reasonableness of the
amount requested for the supplemental fee request to cover the
preparation of the reply to the first fee request.
a supplemental fee of $2,033.00 for the preparation of the reply an amount in excess of the fees requested in the preparation of a
reply in the substantive briefing of the issues involved in the
This Court agrees with the Commissioner that this amount is
excessive given the content of the reply and a further reduction of
25% will be made in this requested fee to $1,524.75.
Claimant also filed a second supplemental fee request, seeking
fees for preparing the reply to the first supplemental fee request.
The Commissioner did not respond to this second
supplemental fee request.
It will be granted as filed.
IT IS THEREFORE ORDERED that on Claimant’s Motion for Attorney
Fees Pursuant to the Equal Access to Justice Act (Docket Entry
#26), Claimant’s Supplemental Application for Attorney Fees (Docket
Entry #30), and Claimant’s Second Supplemental Application for
Attorney Fees (Docket Entry #33) are hereby GRANTED as reduced in
Claimant’s attorney’s fees in the total amount of $8,906.25.
In accordance the ruling of the Tenth Circuit Court of
Appeals, the award with shall be made to Claimant as the prevailing
party and not directly to Claimant’s counsel.
Manning v. Astrue,
510 F.3d 1246, 1255 (10th Cir. 2007); 28 U.S.C. § 2412(b).
attorney’s fees pursuant to 42 U.S.C. § 406(b)(1), counsel shall
refund the smaller amount to Claimant.
Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir. 1986).
IT IS SO ORDERED this 27th day of January, 2017.
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE
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