McClenan v. Social Security Administration

Filing 26

OPINION AND ORDER by Magistrate Judge Kimberly E. West granting 22 Motion for Attorney Fees and granting 25 Supplemental Motion for Attorney Fees in the amount of $9,417.10. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JAMIE M. MCCLENAN,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

Case No. CIV-17-438-KEW

OPINION AND ORDER

This matter comes before the Court on Plaintiff’s Application
for Award of Attorney’s Fees Pursuant to the Equal Access to
Justice Act (Docket Entry #22).
March

20,

Commissioner

2019,
to

this
deny

Court

By Order and Opinion entered

reversed

Claimant’s

the

application

decision
for

of

the

disability

insurance benefits under Title II of the Social Security Act and
remanded the case for further proceedings.
In the Motion, Claimant seeks attorney’s fees for 40.8 hours
of time expended by his attorney at the stipulated fee rate and
1.8 hours in paralegal time for a total request of $8,407.10 under
the authority of the Equal Access to Justice Act (“EAJA”).

The

Commissioner contests the award of EAJA fees, contending her
position

in

the

underlying

case

was

substantially

justified.

Because Claimant was required to file a reply to respond to the
Commissioner’s objection, he filed a Supplemental Application for

Attorney Fees to include $1,010.00 to research and prepare the
reply brief.

The Commissioner did not respond to the Supplemental

Application.
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

2412(d)(1)(A).

With

make

an

respect

award

to

unjust.

EAJA

28

applications

U.S.C.
in

§

Social

Security cases, Defendant has the burden of showing that her
position was substantially justified.
1266, 1267 (10th Cir. 1988).

Hadden v. Bowen, 851 F.2d

Defendant must prove that, even if

her position is incorrect, her case had a reasonable basis in law
and

in

fact.

Id.

To

establish

substantial

justification,

Defendant must show that there is a genuine dispute and that
reasonable people could differ concerning the propriety of a
particular agency action.
(1987).

Pierce v. Underwood, 487 U.S. 552, 565

The government’s “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
. . .”

Id. at 566 n.2.

Clearly,

Claimant

constituted

accordance with this Court’s decision.
2

the

prevailing

party

in

The Commissioner contends

that the ALJ had a reasonable in law in presuming that he concluded
that Claimant could maintain a work schedule and in his position
that

Claimant

was

required

to

demonstrate

that

her

medical

appointments would have required a full day of absence from work
to preclude her ability to engage in her past relevant work.

Even

if such a presumption could be reasonably made, the conclusion is
not supported by substantial evidence given the requirement in the
regulations that a claimant be able to perform sustained work
activities on a regular and continuous basis.

This Court cannot

conclude that the ALJ’s position in this regard is substantially
justified since his findings – even his presumed findings – would
conflict with the evidence of record and that conflict was apparent
on the face of the record.
Defendant also objects to the reasonableness of the fees
requested, asserting that a typical case requires the expenditure
of

20

to

40

hours

and

this

case

did

not

entail

sufficient

complexity to require legal time at the upper end of this spectrum.
Defendant also urges this Court to consider the fact that counsel
received $5,500.00 in a prior remand.

On this latter issue, this

Court finds that it would be improper for fees to be reduced in
this

remand

because

of

the

time

expended

prosecution of another remand in the same case.
3

in

the

filing

and

Each remand stands

on its own merits and it is unreasonable for a lawyer to be required
to remember the record and facts of a case from one appeal to the
next when years pass between the appeals.
As for the reasonableness of the fees, Plaintiff’s counsel
expended a total amount of 40.8 hours in the preparation and
presentation of this case, resulting in a successful reversal and
remand.

The time expended in this case giving rise to the

requested fees is not substantially different from other cases for
which fees have been awarded involving like issues and a successful
result.

This Court will not routinely engage in a hindsight review

of an attorney’s allocation of time to a given work product, so
long as the overall time for which compensation is sought is
reasonable.

In this case, Plaintiff’s counsel’s request falls

within the parameters of reasonableness and will be allowed.
Since the Commissioner did not object to the reasonableness
of the supplemental fee request, the additional fees for the
preparation of Claimant’s reply will be awarded.
IT IS THEREFORE ORDERED that Plaintiff’s Application for
Award of Attorney’s Fees Pursuant to the Equal Access to Justice
Act (Docket Entry #22)and Plaintiff’s Supplemental Application for
Attorney Fees (Docket Entry #25) are hereby GRANTED and that the
Government be ordered to pay Claimant’s attorney’s fees in the
4

total amount of $9,417.10.
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).
addition,

should

Claimant’s

counsel

ultimately

be

In

awarded

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 10th day of April, 2020.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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