Scott v. Commissioner of Social Security Administration

Filing 21

ORDER granting in part 17 Motion for Attorney Fees and awarding attorney's fees under the EAJA in the amount of $4541.40. Signed by Honorable Charles Goodwin on 12/22/2020. (jb)

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

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Case No. CIV-18-493-G

ORDER
On September 23, 2019, the Court entered a Judgment reversing the decision of the
Commissioner of the Social Security Administration (“SSA”) and remanding this case for
further administrative proceedings. See J. (Doc. No. 16); see also Scott v. Saul, No. CIV18-657-G, 2019 WL 4643996 (W.D. Okla. Sept. 23, 2019). Plaintiff Cheryl Scott now
moves for an award of attorney’s fees in the amount of $5753.40 pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §§ 2412 et seq. See Pl.’s Mot. (Doc. No. 17);
Pl.’s Br. (Doc. No. 18). Defendant has responded to the Motion (Doc. No. 19), and the
matter is now at issue.
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
States” includes not only the position taken by the government in the present civil action

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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). The term “substantially justified” has
been defined as “‘justified in substance or in the main—that is, justified to a degree that
could satisfy a reasonable person.’” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565
(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 application 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).

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B. Whether the Government’s Position Was Substantially Justified
In the administrative proceedings below, the administrative law judge (“ALJ”)
failed to properly consider Plaintiff’s mental impairments and the related evidence.
Specifically, the ALJ did not weigh the medical opinions of the consultative examiner or
the limitations set forth in those opinions. See Scott, 2019 WL 4643996, at *3. Further,
the ALJ assigned great weight to two state-agency psychologists’ opinions “in the context
of finding that Plaintiff’s mental impairments were not severe” “but did not discuss them
at all in finding that those impairments supported no related functional limitations. Id. “In
fact, the ALJ failed to engage in any analysis of mental functions or . . . nonsevere mental
impairments in her RFC discussion.” Id. (alterations and internal quotation marks omitted).
The Court found that the ALJ’s error could not be excused as harmless and that reversal
was required. See id. at *4.
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 4 n.2; 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. 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 $202.00 is a reasonable hourly
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rate for attorney work performed in 2018, and $204.00 is a reasonable hourly rate for
attorney work performed in 2019, on Social Security cases in the Western District of
Oklahoma. See Pl.’s Br. Ex. 1, Mem. from Denver OGC Office Regarding Soc. Sec. Litig.
in Okla. & N.M. (Aug. 14, 2019) (Doc. No. 18-1). 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 2018 and 2019. See Pl.’s Mot. Ex.
1 (Doc. No. 17-1) at 1-3. 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 $5753.40.

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.

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App. May 20, 2014) (“The public fisc should not shoulder the burden of unreasonable
billing under the guise of ‘industry norms.’”).
Defendant argues that Plaintiff’s time sheets reflect an unreasonable amount of time
spent on certain legal and paralegal tasks. The Court agrees in part.
Plaintiff’s request includes compensation for 21.00 hours of attorney time spent on
preparation and drafting of Plaintiff’s opening brief. See Pl.’s Mot. Ex. 1, at 2 (Attorney
Time entries from August 30, 2018, to October 11, 2018). Defendant asserts that this
request is excessive because Plaintiff’s “short, nine-page opening brief” raised “only one
issue, which was neither novel nor complex,” relied on oft-cited authorities, and scarcely
touched upon the medical evidence. Def.’s Resp. at 4-5. Having reviewed the brief, see
Doc. No. 13, the Court agrees that 21.00 hours is unreasonable. This aspect of Plaintiff’s
request will be reduced to 15.00 hours at the applicable $202.00/hour rate, for an award of
$3030.00. Cf. 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”).
The Court has considered Defendant’s remaining challenges to Plaintiff’s requested
attorney fees and paralegal fees but disagrees that Plaintiff’s request reflects excessive or
noncompensable billing. The Court therefore will grant Plaintiff’s request subject to the
deduction 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
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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. 17) and awards
attorney’s fees under the EAJA in the amount of $4541.40, 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 22nd day of December, 2020.

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