Mitchell v. Commissioner of Social Security Administration

Filing 29

ORDER granting in part 26 Motion for Attorney Fees and awarding attorney's fees under the EAJA in the amount of $6812.50. Signed by Honorable Charles Goodwin on 07/24/2019. (jb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
DAWN MITCHELL,
Plaintiff,
v.
ANDREW SAUL,
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Commissioner of Social Security,
Defendant.

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Case No. CIV-17-889-G

ORDER
On March 14, 2019, the Court entered an Order and a Judgment reversing the
decision of the Social Security Administration (“SSA”) and remanding this case for further
proceedings. See Doc. Nos. 24, 25. Now before the Court is Plaintiff Dawn Mitchell’s
Motion for Attorney’s Fees under the Equal Access to Justice Act, 28 U.S.C. §§ 2412 et
seq. See Pl.’s Mot. (Doc. No. 26) and Pl.’s Br. (Doc. No. 27). Defendant has responded.
See Doc. No. 28.
I.

Attorney Fee Awards Under the EAJA
Section 2412(d) of the EAJA provides that a prevailing party other than the United

States shall be awarded reasonable fees in a civil action “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), (d)(2)(A). The “position of the United

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The current Commissioner is substituted as Defendant pursuant to Federal Rule of Civil
Procedure 25(d).

States” includes not only the position taken by the government in the present civil action
but also “the action or failure to act by the agency upon which the civil action is based.”
Id. § 2412(d)(2)(D). “[T]he required ‘not substantially justified’ allegation imposes no
proof burden on the fee applicant”; “the Government is aware, from the moment a fee
application is filed, that to defeat the application on the merits, it will have to prove its
position ‘was substantially justified.’” Scarborough v. Principi, 541 U.S. 401, 403 (2004);
accord Hackett v. Barnhart, 475 F.3d 1166, 1169 (10th Cir. 2007). To make this showing,
the government must prove that its case “had a reasonable basis in law and in fact.” Hadden
v. Bowen, 851 F.2d 1266, 1267 (10th Cir. 1988); see also 28 U.S.C. § 2412(d)(1)(B)
(prescribing that whether the government’s position was substantially justified is
determined based on the record before the court, including the record of the agency’s action
or failure to act upon which the civil action was based).
II.

Discussion
A. Whether Plaintiff Is the Prevailing Party
As noted above, the Court previously reversed the Commissioner’s decision

denying Plaintiff’s applications for disability insurance benefits under the Social Security
Act, 42 U.S.C. §§ 401-434. Having obtained reversal and remand under sentence four of
42 U.S.C. § 405(g), Plaintiff is considered the “prevailing party” for purposes of the EAJA.
See J. at 1; 28 U.S.C. § 2412(d)(2)(B); Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993).
B. Whether the Government’s Position Was Substantially Justified
In the administrative proceedings below, the administrative law judge (“ALJ”) erred
by failing to properly evaluate multiple medical opinions, “resulting in the improper
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omission of certain restrictions from the [residual functional capacity] assessment.”
Mitchell v. Berryhill, No. CIV-17-889-G, 2019 WL 1199859, at *2 (W.D. Okla. Mar. 14,
2019). Specifically, the ALJ failed to properly consider two treating-physician opinions as
to physical restrictions and failed to properly consider a state-agency examining
psychologist’s opinion as to mental restrictions. See id. at *3-4. The Court found that
reversal was required on these bases and declined to address other propositions of error
raised by Plaintiff. See id. at *4 (citing Watkins v. Barnhart, 350 F.3d 1297, 1299 (10th
Cir. 2003)).
Defendant does not argue, and thus has not shown, that the United States’ position
before the SSA and this Court was substantially justified. See Def.’s Resp. at 1 (“[T]he
Commissioner does not object to Plaintiff’s request based on substantial justification.”); 28
U.S.C. § 2412(d)(1)(A), (d)(1)(B), (d)(2)(D).
C. Plaintiff’s Requested Hourly Rate
An attorney’s fee award under the EAJA is limited to $125.00 per hour unless the
court determines that an increase in the cost of living or special factor justifies a higher fee.
See 28 U.S.C. § 2412(d)(2)(A). Plaintiff has requested an upward adjustment of this
statutory rate, and Defendant does not challenge the hourly attorney fees requested by
Plaintiff. See Def.’s Br. at 1. The Court takes judicial notice of the fact that SSA’s Office
of General Counsel (“OGC”) in Denver has agreed as a matter of policy that $197.00 is a
reasonable hourly rate for attorney work performed in 2017, and $202.00 is a reasonable
hourly rate for attorney work performed in 2018 and 2019, on Social Security cases in the
Western District of Oklahoma. See Pl.’s Br. Ex. 1, Mem. from Denver OGC Office
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Regarding Soc. Sec. Litig. in Okla. & N.M. (Feb. 21, 2019) (Doc. No. 27-1). Plaintiff
therefore is entitled to an upward adjustment of the statutory rate consistent with the
evidence provided.
Plaintiff also may recover “paralegal fees from the Government at prevailing market
rates.” Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). Plaintiff requests an
hourly rate of $110.00 for paralegal work performed in 2017, 2018, and 2019. See Pl.’s
Mot. Ex. 1 (Doc. No. 26-1) at 3. Defendant does not object to this proposed hourly rate,
and the Court finds that it is consistent with the prevailing market rates in the Western
District of Oklahoma for this time period. See Vincent v. Berryhill, 247 F. Supp. 3d 1228,
1233 (W.D. Okla. 2017); Prince v. Berryhill, No. CIV-15-933-G, 2018 WL 1249908, at
*3 (W.D. Okla. Mar. 9, 2018).
D. Whether Plaintiff’s Fee Request Is Reasonable
The Court is aware of no special circumstances that would make an award of
attorney’s fees unjust. See 28 U.S.C. § 2412(d)(1)(A). Thus, the only remaining issue is
the reasonableness of Plaintiff’s fee request, which totals $7339.55.

See id. §

2412(d)(1)(A), (d)(1)(B), (d)(2)(A). 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); see also Presley v. Shinseki, No. 12-1961-E, 2014 WL 2069643, at *2 (Vet.
App. May 20, 2014) (“The public fisc should not shoulder the burden of unreasonable
billing under the guise of ‘industry norms.’”).

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Defendant argues that the number of hours for which Plaintiff seeks to be paid is
excessive and that some work is duplicative or otherwise not properly compensable. See
Def.’s Resp. at 3-7. The Court has considered Defendant’s arguments and agrees.
First, Plaintiff requests compensation for three hours of attorney time spent
reviewing the ALJ’s decision and administrative-hearing “notes” and determining whether
to file an action for judicial review in this Court. See Pl.’s Mot. Ex. 1, at 1. The Court
agrees that this amount of time is excessive for reviewing a 21-page ALJ decision. See
Yandell v. Colvin, No. CIV-14-1151-STE, 2016 WL 4250466, at *2 (W.D. Okla. Aug. 10,
2016) (reducing a requested award and stating that a 21-page ALJ decision “should have
taken no longer than one hour to read” “at the most”). This time shall be reduced to 1.5
hours.
Next, Plaintiff requests .25 attorney hours to “Receive and review Defendant’s
Answer.” See Pl.’s Mot. Ex. 1, at 1. Defendant’s answer is three double-spaced pages,
filed in response to Plaintiff’s counsel’s standard and nonspecific complaint. One-quarter
of an hour is excessive, and this time shall be reduced to 0.1 hours.
Third, the Court agrees that Plaintiff’s counsel should not be compensated for the
1.0 attorney hours identified as time spent “[p]repar[ing] index for brief.” Id. Such
nonlegal work is more appropriately delegated to a paralegal or support staff and shall be
disallowed. See Hendley v. Shinseki, No. 09-2803(E), 2012 WL 2511583, at *2 (Vet. App.
June 29, 2012).
The Court has considered Defendant’s remaining challenges to Plaintiff’s requested
attorney fees and paralegal fees but disagrees that Plaintiff’s fee request otherwise reflects
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excessive, duplicative, or noncompensable billing.

The Court therefore will grant

Plaintiff’s request excepting the deductions noted above.
CONCLUSION
Having considered the parties’ arguments as well as the relevant record, the Court
concludes that: (1) Plaintiff is a prevailing party; (2) the government’s position was not
substantially justified; (3) there are no special circumstances that make an award of fees
unjust in this case; and (4) the amount of the fee requested, as adjusted herein, is reasonable.
The Court therefore GRANTS IN PART Plaintiff’s Motion (Doc. No. 26) and awards
attorney’s fees under the EAJA in the amount of $6812.50, with said amount to be paid
directly to Plaintiff and sent in care of Miles Mitzner, P.O. Box 5700, Edmond, Oklahoma
73083-5700. If attorney’s fees are also awarded under 42 U.S.C. § 406(b), Plaintiff’s
counsel shall refund the smaller award to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir. 1986).
IT IS SO ORDERED this 24th day of July, 2019.

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