Yandell v. Commissioner of Social Security

Filing 29

MEMORANDUM OPINION AND ORDER -- The Court GRANTS Plaintiff's Motion for Attorney's Fees ECF No. 23 . See order as more fully set out. Signed by Magistrate Judge Shon T. Erwin on 8/10/16. (mc)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
TINA YANDELL,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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Case No. CIV-14-1151-STE

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff’s Motion for Attorney’s Fees under the Equal Access
to Justice Act (EAJA), 28 U.S.C. § 2412. (ECF No. 25). Specifically, Plaintiff seeks an
award in the amount of $8,325.00. (ECF No. 25:2). Defendant objects to the amount of
fee requested, arguing that it is unreasonable. (ECF No. 27). According to Defendant,
the Court should award Plaintiff no more than $4,706.00 in fees. The Court GRANTS
Plaintiff’s Motion for fees in the amount of $7,106.00.
I.

FEES UNDER THE EAJA—ENTITLEMENT AND REASONABLENESS
EAJA entitles a prevailing party to recover reasonable attorney fees from the

government “‘unless the court finds that the position of the United States was
substantially justified or that special circumstances make an award unjust.’” Al–Maleki v.

Holder, 558 F.3d 1200, 1204 (10th Cir. 2009) (quoting 28 U.S.C. § 2412(d)(1)(A)).
When evaluating a claim for fees under EAJA, the court must first determine the
number of hours reasonably spent by counsel for the prevailing party. Malloy v.

Monahan, 73 F.3d 1012, 1017 (10th Cir. 1996). Factors considered in a reasonableness

determination include: (1) the hours that would be properly billed to one’s client in
accordance with good “billing judgment,” (2) time spent on specific tasks, and (3)
duplication of efforts. Malloy, 73 F.3d at 1017–18. In exercising good billing judgment,
“counsel for the prevailing party should make a good faith effort to exclude from a fee
request hours that are excessive, redundant, or otherwise unnecessary.” Hensley v.

Eckerhart, 461 U.S. 424, 434 (1983). The district court is obligated to exclude “hours
not ‘reasonably expended’ from the calculation.” Malloy, 73 F.3d at 1018. Although the
Tenth Circuit does not require an automatic reduction in hours to adjust for multiple
representation, district courts should give particular attention to the possibility of
duplication. See Alpine Bank v. Hubbell, No. 05–CV–26, 2010 WL 1258002, at *4 (D.
Colo. Mar. 24, 2010). “The party seeking the award has the burden of persuading the
court that the hours expended and the rate sought are both reasonable.” Malloy, 73
F.3d at 1018.
II.

THE COMMISSIONER’S OBJECTIONS REGARDING REASONABLENESS
OF REQUESTED FEE
Ms. Colvin does not dispute Plaintiff’s entitlement to attorney fees or the hourly

rate which Plaintiff has proposed, but argues that the number of hours billed is
excessive, some of the entries are duplicative, and a portion of the hours are not
compensable. (ECF No. 27).
A.

Allegedly Excessive Work

For the 44.2 hours Plaintiff’s attorney seeks to recover fees, Defendant
challenges 35.9, including four specific claims that Mr. Mitzner is alleging an excessive
amount. (ECF No. 27:2-4). First, Mr. Mitzner claimed 22.25 hours to research the
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administrative record, applicable case law, and to prepare his opening brief. (ECF No.
25-1:1-2). According to Ms. Colvin, this amount of time was excessive, considering Mr.
Mitzner’s expertise in the field of social security law, having practiced in that area for
over 25 years. (ECF No. 27:2-3). In response, Mr. Mitzner claims that his experience
has allowed him to “become more, not less, thorough, and being thorough takes more
time; again, not less.” (ECF No. 28:2). Mr. Mitzner refers the court to the 847-page
record, and states that at a reading rate of 30 seconds per page, a review of the record
alone would take approximately 7 hours, which is consistent with his claim for 7.9 hours
to review the record and develop his argument. (ECF Nos. 28:3; 25-1:1). The Court
agrees with Plaintiff, and concludes that the amount of time requested, 22.25 hours, for
reading the record and preparing the opening brief was not excessive. See Sommerville

v. Astrue, 555 F. Supp. 2d 1251, 1254 (D. Kan. 2008) (rejecting Defendant’s argument
that Plaintiff’s request for EAJA fees was excessive “simply because the attorney
preparing it is experienced.”).
Next, Plaintiff’s counsel requests 2.85 hours to review the Appeals Council’s
denial, the administrative decision, and hearing notes to determine whether to file a
federal appeal. (ECF No. 25-1:1). Ms. Colvin argues that the amount is excessive and
the Court agrees. As noted by Defendant, Mr. Mitzner was already familiar with the
case, having represented Ms. Yandell at the administrative level See Administrative
Record at 38. The Appeals Council’s denial was 3 pages long, and was nothing more
than a form denial, with which Mr. Mitzner was likely familiar. The administrative
decision was 21 pages long, and at the most, should have taken no longer than one

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hour to read. The undersigned agrees that the amount requested is excessive, and
reduces the amount awarded by 1.45 hours or $275.50.
Third, Ms. Colvin argues that Mr. Mitzner’s request for 1.7 hours to “draft and
review letter to Client regarding Federal Court and conference with Client regarding
same” was excessive, because Mr. Mitzner likely used a form letter. (ECF No. 27:3).
Mr. Mitzner defends the billing request, ignoring Defendant’s argument regarding the
use of a form letter, and instead stating that the time billed adequately reflected the
amount of time necessary to “conference” regarding the complexities of federal
litigation. (ECF No. 28:5). However, in doing so, Mr. Mitzner submits only a general
argument, stating that “clients are usually undereducated and simply don’t get it, so it
takes a long time in an office conference.” (ECF No. 28:5). This broad response,
however, is not tailored to how long it took Mr. Mitzner to counsel specifically with Ms.
Yandell. As a result, the Court concludes that the requested amount of time is
excessive, and the Court reduces the amount of time billed for this request to .8 hour or
$152.00.
Finally, Ms. Colvin argues that Plaintiff’s request for 1.5 hours to “Receive and
review Memorandum Opinion and Order and Judgment” is excessive. The Court agrees,
as the Memorandum Opinion and Order and Judgment comprised approximately 10,
double-spaced pages. (ECF Nos. 23 & 24). Thus, the Court reduces the amount of
compensable time for this request by .75 hour or $145.50.

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B.

Allegedly Non-Compensable Work

Plaintiff has requested reimbursement for 3.15 hours for: (1) drafting and filing
the Complaint, summons, and civil cover sheet, (2) preparing and issuing various
summons, and (3) conferencing with Ms. Yandell regarding the federal court filing and
briefing procedure. (ECF No. 25-1:1). Ms. Colvin objects, arguing: (1) that “block
billing” tasks makes it impossible to evaluate their reasonableness, and (2) “the
majority of these block-billed tasks are non-compensable” (citing district of Oregon case
which held that attorney time spent drafting and serving summons was “noncompensable clerical work.”) (ECF No. 27:4). The Court agrees that the block-billed
nature of the entry makes it impossible to discern how long each task required and Mr.
Mitzner should not be compensated for “clerical services.” See Bowers v. Astrue, No.
07-CV-00454-WYD, 2008 WL 2568801, at *3 (D. Colo. June 24, 2008) (deducting time
that attorney billed for “for clerical services, since such services do not require
professional skill or expertise.”). Thus, the Court reduces the amount of compensable
time for this request by 1.40 hours or $266.00.
C.

Allegedly Duplicative Work

Finally, Plaintiff requests compensation for 4.45 hours, the amount of time it
allegedly took Mr. Mitzner to prepare his application for EAJA fees. (ECF No. 25-1:2).
According to the Commissioner, the amount of time requested is excessive, as Mr.
Mitzner prepared nearly an identical brief in another case, Donaho v. Colvin, Case No.
CIV-14-1105-STE, and appeared to “copy and paste” the legal argument from that brief
into Ms. Yandell’s application for EAJA fees. (ECF No. 27:5-6). The Commissioner’s

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argument appears valid, as evidenced by: (1) Mr. Mitzner’s reference in the instant case
to the legal argument in Donaho and citation to the Court’s Order in that case and (2)
Mr. Mitzner’s statement in his reply brief that Defendant’s challenge “is absolutely
correct because I follow my plan the same every time.” (ECF Nos. 26:6 & 28:5).
Accordingly, the Court reduces the amount of compensable time for Plaintiff’s EAJA
application by 2.0 hours or $380.00.
III.

AMOUNT OF RECOVERABLE FEE
An award under EAJA is limited to $125.00 per hour unless the court determines

that an increase in the cost of living or another special factor justifies a higher fee. 28
U.S.C. §2412(d)(2)(A). Ms. Yandell has requested an upward adjustment of the
statutory rate and has provided supporting documentation in the form of a letter dated
March 24, 2015, from the Office of the General Counsel of the Social Security
Administration. (ECF No. 26-1). This letter shows that for 2014 and 2015, the
authorized maximum hourly rate for attorney work in Oklahoma was $190.00 and
$188.00, respectively. (ECF No. 26-1). Thus, Ms. Yandell is entitled to an upward
adjustment of the hourly fee consistent with the evidence provided.
For the forgoing reasons, the Court finds that Ms. Yandell is entitled to a total
award of attorney fees under EAJA of $7,106.00. Said fee is payable to the Plaintiff.

See Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010). If attorney fees are also awarded
under 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s counsel is to refund the
smaller amount to Plaintiff. Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

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ORDER
The Court GRANTS Plaintiff’s Motion for Attorney’s Fees (ECF No. 23) in the
amount of $7,106.00.
ENTERED on August 10, 2016.

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