Barrett v. Commissioner of Social Security Administration
Filing
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ORDER granting 34 Motion for Attorney Fees, awarding Plaintiff $6,606.25 in fees. Signed by Magistrate Judge Shiva V. Hodges on 05/11/2015.(bshr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
John D. Barrett, Sr.,
Plaintiff,
vs.
Commissioner of Social Security
Administration,
Defendant.
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C/A No.: 1:14-2398-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 $6,606.25 in attorney’s fees and expenses on the ground that he is a prevailing
party under the EAJA. [ECF No. 34]. The Commissioner submits that the fees requested
by Plaintiff’s counsel are unreasonable and requests that Plaintiff’s attorney’s fees be
reduced to $4,025.00. [ECF No. 35 at 1]. Plaintiff filed a reply to the Commissioner’s
response in which he maintained the requested fee was reasonable. [ECF No. 36]. For
the reasons set forth below, the court grants Plaintiff’s motion for attorney’s fees in the
amount of $6,606.25.
I.
Procedural Background
On July 26, 2010, Plaintiff filed applications for DIB and SSI in which he alleged
his disability began on February 1, 2010. Tr. at 167–71, 173–93. His applications were
denied initially and upon reconsideration. Tr. at 79–83, 86–88, 89–91. Following a
hearing before an Administrative Law Judge (“ALJ”), the ALJ issued an unfavorable
decision on December 7, 2012. Tr. at 19–40. In her decision, the ALJ found Plaintiff had
not been under a disability since the date the application was filed. Tr. at 35. Applying
the five-step sequential process, the ALJ found that Plaintiff had severe impairments of
disorders of the back, chronic obstructive pulmonary disease (“COPD”), blackouts,
psychotic disorder, major depressive disorder with psychotic features, and paranoid
personality traits. 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 medium work, except
that he could lift and/or carry 50 pounds occasionally and 25 pounds frequently; stand
and/or walk about six hours in an eight-hour workday; sit about six hours in an eight-hour
workday; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds;
frequently balance, stoop, kneel, crouch, and crawl; avoid concentrated exposure to
extreme heat, hazards, fumes, odors, dusts, gases, and poor ventilation; was limited to
routine, repetitive tasks and/or unskilled work with no public interaction; and could not
perform work requiring a production-pace. Tr. at 28. 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 he could perform. Tr. at 34–35.
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 5–
9. Thereafter, Plaintiff brought this action seeking judicial review of the Commissioner’s
decision in a complaint filed on June 16, 2014. [ECF No. 1]. On June 26, 2014, Plaintiff
filed a motion to admit new evidence and on October 3, 2014, the Commissioner filed a
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response in opposition to Plaintiff’s motion. [ECF Nos. 10, 18]. The Commissioner
subsequently filed an answer and a copy of the administrative record. ECF Nos. 21, 22.
In his brief Plaintiff alleged several errors committed by the ALJ, including that the ALJ
improperly assessed and failed to explain her findings regarding his RFC, that the ALJ
failed to consider the entire record in assessing his credibility, and that the ALJ
improperly considered the medical opinion evidence. [ECF No. 26]. However, Plaintiff
conceded that, upon review of the record, he discovered that most of the evidence he
sought to admit through his motion had been submitted at the administrative level and
appeared in the record. [ECF No. 26 at 20]. The court subsequently denied Plaintiff’s
motion to admit new evidence as moot, but ordered the case be remanded for further
administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). [ECF No. 31
at 47].
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)). 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).
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 argues that Plaintiff’s attorney’s fee should be reduced to
$4,025.00 for 23 hours of work at the rate of $175.00 per hour and that the EAJA fee
should be awarded directly to Plaintiff. [ECF No. 35 at 1].
The Commissioner argues that Plaintiff’s entry for a half hour of attorney time for
a notice of appearance, consent to jurisdiction by a United States Magistrate Judge, and
review of records should be reduced in its entirety because it is vague and mingles three
different actions into one entry and because the tasks were “clerical.” [ECF No. 35 at 4–
5]. The Commissioner cites a First Circuit case, Lipsett v. Blanco, 975 F.2d 934 at 937–
38 (1st Cir. 1992), to advance her first objection to counsel’s half hour time entry. Id. In
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Lipsett, the court discussed its decision in Grendel’s Den, Inc. v. Larkin, 749 F.2d 945,
952, (1st Cir. 1984), which announced that “the absence of detailed contemporaneous
time records, except in extraordinary circumstances, will call for a substantial reduction
in any award or, in egregious cases, disallowance.” Id. at 938. In Lipsett, the controversial
time entries totaled 81.2 hours and were “so nebulous” that they did not allow the paying
party to determine their accuracy or the reasonableness of the time spent. Id. The court
finds that the half hour entry in this case is not egregious or so nebulous as to not allow
the Commissioner to determine its accuracy or reasonableness. In fact, the entry
specifically describes the three activities performed during the half hour in question. As
for the nature of the activities performed, the court does not find that they were purely
clerical activities. “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 also 491 U.S. at 288 n. 10. Because the court only
allows attorneys to serve as Filing Users of the Electronic Case Filing (“ECF”) System
and because Filing Users are liable for any misuse of login credentials, counsel’s filing of
his notice of appearance and the consent to jurisdiction by a United States Magistrate
Judge cannot be considered purely clerical. See CM/ECF Policies and Procedures at 1.3,
3.1, 3.4, 10.3 (D.S.C. 2006). Furthermore, Plaintiff’s counsel submits that the majority of
this time was spent reviewing records. [ECF No. 36 at 4]. In light of this evidence, the
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court finds that the half hour of compensation in question was reasonable and that
Plaintiff’s counsel should be compensated for it.
The Commissioner argues counsel’s requested time should be reduced by 4.5
hours for work related to the motion to admit new evidence. [ECF No. 35 at 5]. She
argues counsel seeks compensation for three hours of work on June 26, 2014, for two
phone calls and preparation of the motion to admit new evidence, but fails to indicate the
specific amount of time spent on each task. Id. She further argues that filing of the
amended complaint was a clerical task. Id. The Commissioner maintains that counsel’s
time related to the motion to admit new evidence was not reasonably expended because
due diligence during counsel’s consultation with Plaintiff on June 20, 2014, would have
revealed that the evidence was already in the record. Id. at 6.
The court rejects the Commissioner’s argument and finds that Plaintiff’s counsel
reasonably expended time related to the motion to admit new evidence. Although counsel
met with Plaintiff on June 20, 2014, it is unlikely that Plaintiff provided his counsel with
a detailed account of every piece of evidence in the record. [See ECF No. 34-3[. A review
of Plaintiff’s motion to admit new evidence reveals that he reviewed a copy of the ALJ’s
decision, but lacked access to the transcript. [ECF Nos. 10, 10-1 at 1–2]. Based on his
review of the ALJ’s decision, counsel concluded the evidence in question was not in the
record. [ECF No. 10-1]. A review of the transcript revealed counsel’s conclusion to be
erroneous, but he did not realize his error until after he received a copy of the transcript.
[ECF No. 36 at 1]. Because sentence six of 42 U.S.C. § 405(g) allows for remand on
motion of the Commissioner prior to the filing of an answer and transcript and because
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Plaintiff could have reasonably assumed the evidence attached to the motion might
persuade the Commissioner to consent to remand, it was reasonable for Plaintiff to file
the motion to admit new evidence before he could confirm the exact contents of the
transcript. The court agrees with Plaintiff’s argument that time is of the essence in filing a
motion to admit new evidence and finds that Plaintiff’s counsel should be compensated
for his good faith effort to protect his client’s interests in light of the evidence available to
him at the time the motion was filed. [See ECF No. 36 at 3–4]. The court further finds
that counsel’s time entries were sufficiently detailed and accepts at face value counsel’s
statement that he did not bill for his secretary’s clerical duties, but only for those duties
he performed himself that were essential to drafting a well-reasoned argument. [See ECF
No. 36 at 4–5]. Therefore, the court finds Plaintiff’s counsel should be compensated for
the 4.5 hours related to the motion to admit new evidence.
Finally, the court finds that Plaintiff reasonably spent 18.5 hours on his brief,
11.25 hours on his reply brief, and two hours preparing the EAJA fee petition. The
Commissioner argues these activities should have required less time than counsel
expended because Plaintiff presented no novel arguments, cited no new cases, and recited
arguments advanced in prior cases. [ECF No. 35 at 7–11]. The Commissioner provides
no objective argument for her suggested time reductions and Plaintiff certified to this
court his actual time spent. [See ECF Nos. 34 at 2, 35 at 7–11]. Therefore, the court relies
upon Plaintiff’s certification of actual time expended and finds that the time he certified
was reasonable for the work he performed.
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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 $6,606.25. 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.
Under Astrue v. Ratliff, 130 S.Ct. 2521, 2528–29 (2010), EAJA fees awarded by
this court belong to Plaintiff and are subject to offset under the Treasury Offset Program
(31 U.S.C. § 3716(c)(3)(B) (2006)). Therefore, the court orders the EAJA fees to be paid
to Plaintiff and mailed to the business address of Plaintiff’s counsel for disbursement as
provided in the contractual agreement between Plaintiff and his counsel.
IT IS SO ORDERED.
May 11, 2015
Columbia, South Carolina
Shiva V. Hodges
United States Magistrate Judge
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