Ellison v. Commissioner of Social Security Administration

Filing 22

ORDER granting 18 Motion for Attorney Fees per Rule 406b, awarding $3,506.43 in fees. Signed by Magistrate Judge Shiva V. Hodges on 07/28/2014.(bshr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Bobbie Jean Ellison,
Plaintiff,
vs.
Carolyn W. Colvin, Acting
Commissioner of Social Security
Administration,
Defendant.

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C/A No.: 1:13-2772-SVH

ORDER

This matter is before the court on Plaintiff’s motion for attorney’s fees pursuant to

the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Plaintiff initially
requested $4,181.43 in attorney’s fees and expenses on the ground that she is a prevailing
party under the EAJA. [Entry #18]. Defendant submits that Plaintiff seeks compensation
for certain administrative tasks that are not compensable under the EAJA and requests
that Plaintiff’s attorney fee award be reduced to no more than $3,228.93. [Entry #19 at
11]. Plaintiff filed a reply to Commissioner’s response in which Plaintiff agreed to
reduce her billing by 3.5 hours to 24.25 hours, for a total award request of $3,656.43.
[Entry #20]. For the reasons set forth below, the court grants Plaintiff’s motion for
attorney fees, but reduces the fee to $3,506.43, to represent 23.25 hours of attorney time
and $18.93 in expenses.
I.

Procedural Background
On May 28, 2010, Plaintiff protectively filed applications for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) in which she alleged her

disability began on November 19, 2009.

Tr. at 64, 65, 122–128, 128–133.

applications were denied initially and upon reconsideration.

Her

Tr. at 70–74, 78–79.

Following a hearing before an Administrative Law Judge (“ALJ”), the ALJ issued an
unfavorable decision. Tr. at 19–36. In her decision, the ALJ found Plaintiff had not been
under a disability since the date the application was filed. Tr. at 30. Applying the fivestep sequential process, the ALJ found that Plaintiff had severe impairments of mild
cervical degenerative disc disease; osteoarthritis of the hands; bilateral hand and wrist
pain; and was status post-left carpal tunnel release. Tr. at 24. The ALJ determined that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the impairments listed at 20 C.F.R. part 404, subpart P, appendix 1. Tr. at
26. Further, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b), except that
Plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently; stand
and/or walk for about six hours in an eight-hour workday; sit about six hours in an eighthour workday; frequently handle and finger with her left non-dominant hand with
unlimited assistance from her right dominant hand; never climb ladders, ropes, and
scaffolds; occasionally crawl; frequently climb ramps and stairs, balance, crouch, stoop,
and kneel; and must avoid concentrated exposure to hazards. Tr. at 27. Finally, the ALJ
determined that Plaintiff was unable to perform any past relevant work, but that jobs
existed in significant numbers in the national economy that she could perform. Tr. at 29–
30.

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The Appeals Council denied Plaintiff’s request for review, making the ALJ’s
decision the final decision of the Commissioner for purposes of judicial review. Tr. at 9–
12.

Thereafter, Plaintiff brought this action seeking judicial review of the

Commissioner’s decision in a complaint filed on October 10, 2013. [Entry #1]. Plaintiff
alleged several errors committed by the ALJ, including that the ALJ failed to consider the
combined effect of all of Plaintiff’s impairments, that the ALJ erred in determining
Plaintiff’s residual functional capacity, and that the ALJ did not properly consider the
opinions of Plaintiff’s treating physicians. [Entry #14]. Defendant filed a motion for
entry of judgment with order of remand pursuant to sentence four of 42 U.S.C. § 405(g)
on April 18, 2014. [Entry #15]. The undersigned issued an order of reversal with
remand of the cause to the Commissioner for further administrative proceedings on April
22, 2014. [Entry #16].
II.

Discussion
Under the EAJA, a court shall award reasonable attorney’s fees to a prevailing

party in certain civil actions against the United States unless the court finds that the
government’s position was substantially justified or that special circumstances make an
award unjust. 28 U.S.C. § 2412(d)(1)(A). The eligibility requirements for an award of
fees under the EAJA are: (1) that the claimant is a prevailing party; (2) that the
government’s position was not substantially justified; (3) that no special circumstances
make an award unjust; and (4) that the fee application be submitted to the court within 30
days of final judgment and be supported by an itemized statement. See Crawford v.
Sullivan, 935 F.2d 655, 656 (4th Cir. 1991).

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Even where the Court finds that the Commissioner’s position was not substantially
justified, Plaintiff is entitled to EAJA compensation only for a reasonable amount of legal
work. See 28 U.S.C. § 2412(d)(2)(A) (authorizing award of “reasonable” fees and other
expenses); Gough v. Apfel, 133 F. Supp. 2d 878, 880 (W.D.Va. 2001). “Although counsel
are entitled to full compensation for their efforts, ‘[i]t does not follow that the amount of
time actually expended is the amount of time reasonably expended.” Bunn v. Bowen,
637 F. Supp. 464, 469 (E.D.N.C. 1986) (emphasis and alteration in original) (quoting
Copeland v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)). “Purely clerical activities,
regardless of who performs them, are considered overhead and are not compensable as
EAJA attorney fees.” 133 F. Supp. 2d at 880 (citing Missouri v. Jenkins by Agyei, 491
U.S. 274, 288 n.10 (1989); In re General Motors Corp., 110 F.3d 1003, 1024 (4th Cir.
1997)). “However, there are many activities which fall into the ‘gray area’ of tasks
which may appropriately be performed by either an attorney or a paralegal.” Id.; see 491
U.S. at 288 n. 10; 109 S. Ct. 2463. Plaintiff bears the burden of showing that the hours
claimed under the EAJA are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433, 437
(1983).
“The EAJA does not prohibit compensation for time expended in preparation for
the filing of a civil action.” 133 F. Supp. 2d at 880 citing Kyser v.Apfel, 81 F. Supp. 2d
645, 647 (W.D.Va. 2000); Pollgreen v. Morris, 911 F.2d. 527, 536 (11th Cir. 1990). The
court recognizes the duty of counsel to familiarize himself with the record before
determining to go forward and will compensate counsel for necessary and reasonable precomplaint activities. Id.

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Because this court remanded the claim pursuant to 42 U.S.C. § 405(g), Plaintiff is
considered the “prevailing party” under the EAJA. See Shalala v. Schaefer, 509 U.S. 292,
302 (1993). The Commissioner does not make a substantial justification argument.
However, the Commissioner does argue that Plaintiff’s attorney’s fee should be reduced
to no more than $3,228.93 for 21.4 hours of attorney work and $18.93 in expenses. The
Commissioner argues that Plaintiff failed to meet her burden of showing that the
requested EAJA fees are both compensable and reasonable. [Entry #19 at 2].
Plaintiff has agreed to cut her fees for client conferences on August 13, 2013, and
August 20, 2013, for letters and forms on August 22, 2013, for filing the summons and
complaint on October 10, 2013, for reviewing the order referring the case to the
undersigned on October 16, 2013, for filing the certificate of service and for reviewing
the summons returned on November 25, 2013, and for filing Plaintiff’s brief on March
17, 2014. [Entry #20 at 2–5]. In accordance with Defendant’s suggestion, Plaintiff has
also agreed to reduce her time to 0.25 hour for preparing the certificate of service. [Entry
#19 at 8, Entry #20 at 4].
The disputed entries are for telephone calls to the Florence Social Security office
on August 29, 2013, September 3, 2013, September 4, 2013, and September 12, 2013; a
fax sent to the Florence Social Security office on September 5, 2013; review of the
summons and complaint issued on October 11, 2013; letters to Eric Holder, Office of
Regional Chief Counsel, and United States Attorney on October 11, 2013, review of
answer with transcript on February 10, 2014; response to emails from U.S. District Court
on April 8, 2014; and review of emails from U.S. District Court on April 14, 2014.

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The undersigned awards Plaintiff fees for review of the summons and complaint
issued and for the three letters drafted on October 11, 2013, but reduces Plaintiff’s time
from two to one hour based on reasonableness. The summons and complaint issued is a
two-page document. The letters drafted were sent to three different parties, but the
undersigned assumes that one letter was drafted and that the salutations and addresses
were changed in the subsequent letters. Therefore, the undersigned concludes that one
hour is a reasonable amount of time to review the summons and complaint issued and
draft the three letters.
After considering the explanation in Plaintiff’s response to Defendant’s objection,
the undersigned accepts Plaintiff’s argument that EAJA fees should be awarded for calls
and a fax to the Florence Social Security office accounting for 1.25 hours of attorney
time. Plaintiff’s attorney indicates that these efforts were made in an attempt to obtain a
copy of the file for her to review the record before filing the complaint. The undersigned
finds that the one hour of attorney time for four telephone calls to the administrative
agency seems reasonable. While the sending of a fax would generally be considered a
clerical activity, because Plaintiff’s attorney explained that she had to complete and fax a
form to the Social Security office, this is more than clerical activity and is compensable
as part of her effort to familiarize herself with the case.
The undersigned agrees to award Plaintiff the requested fees for review of
Defendant’s answer and the transcript on February 10, 2014, and for review and
responses to emails on April 8, 2014, and April 14, 2014, in light of Plaintiff’s
explanation in Plaintiff’s response to Defendant’s objections.

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III.

Conclusion
For the foregoing reasons, the court does not find any special circumstances that

make an award of attorney’s fees unjust. Accordingly, the court grants Plaintiff’s motion
and directs the Commissioner to pay Plaintiff $3,506.43. Such payment shall constitute a
complete release from and bar to any and all further claims that Plaintiff may have under
the EAJA to fees, costs, and expenses incurred in connection with disputing the
Commissioner’s decision. This award is without prejudice to the rights of Plaintiff=s
counsel to seek attorney fees under section 406(b) of the Social Security Act, 42 U.S.C. §
406(b), subject to the offset provisions of the EAJA.
IT IS SO ORDERED.

July 28, 2014
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge 

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