Beckett v. Colvin

Filing 28

OPINION AND ORDER granting in part 23 Motion for Attorney Fees. Signed by U.S. District Judge Roberto A. Lange on 6/18/18. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

KODEE R. BECKETT,

3:16-CV-03048-RAL

Plaintiff,
OPINION AND ORDER GRANTDIG IN
PART MOTION FOR ATTORNEY'S FEES

vs.

NANCY A. BERRYHILL, ACTING

COMMISSIONER OF SOCIAL SECURITY;'
Defendant.

Plaintiff Kodee R. Beckett (Beckett) filed a motion for attorney's fees under the Equal
Access to Justice Act(EAJA), Doc. 23, following this Court's Opinion and Order Reversing and

Remanding the Commissioner's Decision to deny Beckett's application for supplemental security
income, Doc. 21. Beckett seeks $17,706.31 in fees and $34.78 in costs.^ Doc. 23. The

In a letter to the President dated March 6, 2018, the United States Government Accountahility
Office(GAO)reported that the service ofMs.Berryhill as Acting Commissioner ofSocial Security
ended on November 16, 2017, pursuant to the Vacancies Reform Act. The GAO concluded that

while the Social Security Administration continues to designate Ms. Berryhill as Acting
Commissioner, it is a violation of the Vacancies Reform Act to use the acting title of a position
during the period in which the position should be vacant. In Ms. Berryhill's case, the 210-day
period for which she was authorized to serve as Acting Commissioner under the Vacancies Reform

Act began running on April 20, 2017, and ended on November 16, 2017. Notwithstanding the
Social Security Administration's continuing designation ofMs.Berryhill as Acting Commissioner,
it appears that ageney is currently without a Commissioner. The GAO's letter to the President can

be found at https://www.gao.gov/products/D18772#mt=e-report.

^ Beckett's attorney is employed by Disabihty Rights South Dakota, a § 501(c)(3) non-profit
corporation which is exempt fi-om state and local sales taxes. In prior similar cases where South

Dakota Advocacy Services (now Disability Rights South Dakota) represented the plaintiff, the
entity did not request sales taxes on attorney's fees. Consequently, sales taxes do not appear proper
to award here.
1

Commissioner of Social Security(Commissioner) does not oppose an award of attorney's fees or
the hourly rate Beckett's counsel charges, but argues that the $34.78 claimed by Beckett as costs
should be considered "expenses" under the EAJA, and objects to the number of hours for which

Beckett's counsel seeks compensation. Doc. 26 at 2. For the reasons stated below, this Court
grants in part Beckett's motion.
I

I.

Background

This Court issued a lengthy Opinion and Order Reversing and Remanding the
Commissioner's Decision, Doc. 21, which provided a detailed explanation of the facts and issues

of this case. In short, Beckett sought a hearing with an Administrative Law Judge(ALJ)after the
Commissioner twice denied her application for supplemental security income. AR 146, 152-54,
178. The ALJ ultimately determined that Beckett was not disabled, and the Appeals Council
declined to review that decision, finding it was proper under the law. AR 1-6, 37-57. Beckett

subsequently filed an appeal in this Court, arguing both that the ALJ improperly discounted the
opinions ofcertain treatment providers and non-treatment sources, and that the ALJ's decision was

not supported by substantial evidence. This Court found that the ALJ committed legal error by
discounting the opinions of Beckett's treating psychiatrist based solely on a lack of treatment
records which the ALJ neglected to seek, and remanded the decision on that basis. Doc. 21 at 3339.

n.

Analysis
A. "Costs" vs."Expenses" under the EAJA

Beckett characterized the $34.78 incurred from various mailings as "costs" initially, but
Eighth Circuit precedent identifies postage as an allowable "expense" under the EAJA.^Kellv
V. Bowen, 862 F.2d 1333, 1336 (8th Cir. 1988). The Commissioner requests this distinction be

made because "expenses" are paid from the agency fund whereas "costs" are paid from the
judgment fiind. Doc.26 at 1-2. Accordingly,this Court will award Beckett $34.78 as an allowable
expense under the EAJA.

B. Compensable hours

The Commissioner does not object to the award of attorney fees or the hourly rate of
$189.88 proposed in this case, but argues the 93.25 hours claimed by Beckett's counsel are not
reasonable and requests this Court award fees for 38 hours instead. Doc. 26 at 2-5. The

Commissioner contends that "Plaintiffs counsel has failed to justify such a drastic deviation from

the average EAJA award in Social Security disability cases compensating a plaintiffs counsel for
20 to 40 hours of work." Doc. 26 at 3. According to the Commissioner, the eight hours billed to

prepare this EAJA motion "demonstrates the excessive nature of[Beckett's counsel's] billing"
because attorneys typically only bill one to two hours for such work. Doc. 26 at 4. Beckett's
counsel argues that there are no redundant or unnecessary hours billed because no time has been

claimed for the review and editing work of other staff attorneys in this case, and asserts that the
hours, far from being excessive, represent a conservative reporting. Doc. 27 at 1-2.
A court has the discretion to reduce the amount of the award or deny an award "to the
extent that the prevailing party during the course of the proceedings engaged in conduct which

unduly and unreasonably protracted the fmal resolution of the matter in controversy." 28 U.S.C.

§ 2412(d)(1)(C). The court also must decide whether the hours spent by counsel were "reasonably
expended." ^28 U.S.C. § 2412(d)(2)(A); Blum v. Stenson. 465 U.S. 886, 901 (1984). Upon
review ofthe time log submitted by Beckett's counsel and consideration ofthe parties' arguments,
this Court finds that some modest reductions to the compensable hours are warranted.

The hours reported in the time log fall into the following categories: miscellaneous, time
spent reviewing the file and preparing the initial brief, time spent preparing the reply brief, and
time spent preparing this EAJA motion.

In the miscellaneous category, Beckett's counsel reported five hours devoted to tasks such

as preparing some initial pleadings, emailing the United States Attorney's office, and research for

filing in forma pauperis. Doc. 24-1 at 1. These tasks took place in November and December of

2016, shortly after attorney Hamilton took over Beckett's case. This Court finds that attorney
Hamilton reasonably expended five hours in this category.

Attorney Hamilton reported 57.5 hours reviewing the file and preparing the initial brief.

Doc. 24-1 at 1-2. The Administrative Record in this case was 951 pages, and attorney Hamilton's
initial brief, which provided a thorough overview of Beckett's history and argued that the Al l

improperly weighted the opinions of 13 different medical and non-medical sources, was 40 pages.
^Doc. 18. Having thoroughly reviewed the Administrative Record in producing the 43 page
Opinion and Order Reversing and Remanding the Decision of the Commissioner, this Court is
fiilly aware ofthe carefiil examination that was required ofthe lengthy treatment records contained

in the Administrative Record in order to obtain a complete understanding of Beckett's history and
conditions. Although this Court did not endorse every argument Beckett made, the initial brief in

part persuaded this Court that the ALJ had not provided permissible reasons for discounting the

opinions of several sources. Because of the extensive nature of Beckett's challenges to the
Commissioner's decision, as well as the voluminous Administrative Record in this case, this Court

finds that attorney Hamilton reasonably expended 57.5 hours reviewing the file and preparing the
initial brief.

Attorney Hamilton reported 22.75 hours in the preparation of the reply brief. Doc. 24-1 at

2. In the Commissioner s response briefin opposition to Beckett's motion for summaryjudgment,

Doc. 26, each source opinion was discussed and arguments made that the weight given them by
the ALJ was justified. Attorney Hamilton was reasonable in addressing each of these arguments
and cited extensively to the Administrative record once again. However, the substance of the
arguments set forth in this brief was substantially similar to that presented in the initial brief. The

Commissioner did present a new argument in the response brief that there was no step-two error
in the AO's five-step sequential evaluation process. Doc. 26 at 6-8, but because Beckett was not

appealing to this Court on the basis ofa step-two error, no additional effort was required to address
that argument. While it was no doubt a time-consuming affair to address the multiple sources in

this case and the corresponding arguments of the Commissioner as to why the AO properly
weighted the opinions ofthose sources, the amount oftime claimed by attorney Hamilton warrants
reduction because ofthe repetitive nature ofthose arguments. This Court finds that the reasonable
time expended for the reply brief would have been 20 hours.

Lastly, attomey Hamilton reports eight hours in the preparation ofthis EAJA motion. Doc.

24-1 at 2. Under the EAJA,a prevailing party is entitled to recover fees for the time spent preparing
the EAJA fee application and subsequent efforts to support that application. ^Cnmrn'r TNS

V. Jean, 496 U.S. 154, 162 (1990)("We find no textual or logical argument for treating so
differently a party's preparation of a fee application and its ensuing efforts to support that same
apphcation."). While these fees are eollectible, the reasonable time expended under the

circumstances strikes this Court as being no more than six hours. The briefin support ofthe EAJA
motion is nine pages and includes a sparse argument that the Commissioner's position was not
substantially justified. Doc. 25 at 4-5, which was not further contested by the Commissioner.

Attorney Hamilton preempted the Commissioner's arguments that the number of hours reported
in this case was not reasonable because this is a position the Commissioner seems to take almost

by default. ^Stickler v. Berrvhill. CIV. 14-5087-JLV, 2017 WL 4792220 (D.S.D. Oct. 23,
2017); Lavs Hard v. Berrvhill. CIV. 14-5063-JLV, 2017 WL 4797797 (D.S.D. Oct. 23, 2017);
Hansen v. Colvin. Civ. No. 12-4208-KES, 2014 WL 4114348 (D.S.D. Aug. 19, 2014); Long v.
Cplyin, Civ. No. 12-4060-KES, 2013 WL 5701640 (D.S.D. Oct. 18, 2013); Jones v. Astrue. No.

Civ. 11-5014-JLV, 2013 WL 441907 (D.S.D. Feb. 5, 2013). These are not complex or novel

issues, are recurring in cases of this nature, and consequently are reasonably addressed through
allowing six hours in the preparation ofsuch an EAJA motion and brief.

After proper reduction, this Court finds a total of 88.5 hours were reasonably expended by
attorney Hamilton in the course of this case, for a total attorney's fee award of $16,804.38. While
the Commissioner argues for a reduction to 38 hours, the arguments and case law submitted to
support this request are unpersuasive. For instance, the Commissioner's citation to Coleman v.

Astrue, No. C05-3045-PAZ, 2007 WL 4438633 (N.D. Iowa Dec. 17, 2007), does Httle to bolster

the Commissioner's argument because that case involved an Administrative Record that was only
294 pages and issues that were "not unusually complex." R at =^3. Moreover, the Conunissioner
is mistaken in contending that the district court reduced the number of hours from 62 to 30 in

Nelson ex rel. M.K.N.B. v. Astme. No. 10-4001 JNE/TNL,2011 WL 6987176(D. Minn. Dec. 23,
2011), because the court awarded attorney's fees for 42 hours in that case. Id. at *4. The
Commissioner's arguments notwithstanding,"the ultimate amount of an EAJA fee award remains
within the district court's discretion," and this Court has made its determination of what is

reasonable in this case. Johnson v. Sullivan. 919 F.2d 503, 505 (8th Cir. 1990).

C. Whether the Fees May Be Paid Directly to Beckett's Attorney

The Commissioner requests that the EAJA fee be awarded to Beckett as it may be subject
to an offset in order to satisfy any pre-existing debt Beckett may owe to the United States. Doc.

26 at 5 (citing Astme v. Ratliff. 560 U.S. 586,598 (2010)). Attorney Hamilton did not respond to
this request in the reply briefin support ofthis motion, but did provide an affidavit and assignment
of the EAJA fee, signed by Beckett, in the initial filing of this motion, whereby Beckett has
assigned her entitlement to any fee under the EAJA to attorney Hamilton. ^Doc. 23-1.
This Court has previously considered the question of whether an assignment ofEAJA fees
is to be honored when the claimant owes no debt or whether, in light of Ratliff. EAJA fees must
always be paid to the client. ^Johnson v. Astme. No. CIV 10-4052-RAL, 2011 WL 4458850

(D.S.D. Sept. 23, 2011). Recognizing that district courts in the Eighth Circuit have split on the
question, this Court concluded that "[t]he underlying purposes and policies ofthe EAJA are better
served by honoring such an assignment when the litigant owes no other federal debt." .Tnhn.snn

2011 WL 4458850 at *10. Indeed,this Court further concluded that honoring assignments ofthese

fees is a recognition ofthe fact that the fee award belongs to the plaintiff, as contract law recognizes
an assignment as a "manifestation ofthe assignor's intention to transfer" their rights. Id,(quoting
Restatement (Second) of Contracts § 317 (1981)). Nothing has occurred since Johnson which ^
persuades this Court to depart from its prior reasoning. As such, this Court will allow the
Government a 60-day period to determine whether any portion of the EAJA award in this case is

subject to offset and to remit to Beekett's attorney the balance due after any appropriate offset is
apphed.

m.

Conclusion

For the reasons stated above, it is hereby

ORDERED that Beckett's Motion for Attorney's Fees, Doc. 23, is granted in part. It is
further

ORDERED that Beckett is entitled to fees in the amount of$16,804.38 in attorney's fees,
and expenses of$34.78 for postage. It is ftirther

ORDERED that the Social Security Administration shall determine within 60 days whether
Beckett has outstanding federal government debt. IfBeckett has no federal government debt, then
the full award shall be issued to Beckett's counsel. If Beckett has outstanding federal government
debt, then the amount of that debt shall be offset from the award and the difference shall be issued
to Beckett's counsel.

DATED this jS^day of June,2018.
BY THE COURT:

ROBERTO A. LANGE

UNITED STATES DISTRICT JUDGE