Hansen v. Colvin

Filing 32

ORDER granting 27 Motion for Attorney Fees. Signed by U.S. District Judge Karen E. Schreier on 8/19/2014. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
VIVIAN R. HANSEN, Substituted Party for
Susan A. Hansen,
Plaintiff,

CIV. 12-4208-KES

ORDER GRANTING MOTION FOR
ATTORNEY’S FEES

vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Plaintiff, Vivian R. Hansen, Substituted Party for Susan A. Hansen, moved for
reversal of the Commissioner of Social Security’s decision denying her application for
disability insurance benefits under Titles II and XVI of the Social Security Act. On March 18,
2014, the court reversed and remanded the Commissioner’s decision denying benefits.
Hansen now seeks an award of $12,072.27 in attorney’s fees and $724.34 in expenses
pursuant to the Equal Access to Justice Act. The Commissioner objects to the motion. The
court grants Hansen’s motion for attorney’s fees.
DISCUSSION
Under the Equal Access to Justice Act, the prevailing party in a proceeding for judicial
review of federal agency action is entitled to legal fees and costs “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). In this context, “substantially justified” means
“justified to a degree that could satisfy a reasonable person” or having a “reasonable basis in
law and fact.” Koss v. Sullivan, 982 F.2d 1226, 1229 (8th Cir. 1993) (quoting Pierce v. Underwood,

487 U.S. 552, 566 n.2 (1988)). The standard is whether the Commissioner’s position is well
founded in law and fact, “solid though not necessarily correct.” Lauer v. Barnhart, 321 F.3d
762, 764 (8th Cir. 2003). The government bears the burden of proving that the denial of
benefits was substantially justified. Id. (citing Welter v. Sullivan, 941 F.2d 674, 676 (8th Cir.
1991)).
In deciding whether Hansen was entitled to benefits or not, the record reveals no
reasonable basis for the Administrative Law Judge’s (ALJ’s) legal error amending Susan
Hansen’s date of onset with Hansen’s participation or consent. This error affected “the
entirety of the remainder of the five-step sequential process.” Magistrate Judge’s Report and
Recommendation, Docket 23 at 34. This error led to the ALJ failing to consider at step two
Hansen’s treatment for kidney stones, diverticulitis and irritable bowel syndrome, including
the surgical removal of part of her colon, between 2006 and 2008. The ALJ then failed to
properly develop the medical record and to recontact Hansen’s pain specialist as is required
by the regulations. Thus, neither the ALJ’s nor the Commissioner’s position in this case was
well founded in law and fact. See Lauer, 321 F.3d at 764. Accordingly, the government’s
position was not substantially justified and Hansen is entitled to attorney’s fees pursuant to
28 U.S.C. § 2412(d)(1)(A).
The commissioner also objects to the number of hours billed by Hansen’s attorney
and claims the fee request is excessive. Ms. Ratliff billed for 91.59 hours, but she is only
requesting compensation for 68.69 hours, which is a 25 percent reduction. Ms. Ratliff did not
represent Hansen at the administrative level. The record was 837 pages in length, including a
complex and lengthy medical record. Additionally, the issues raised in this case were not

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routine issues. After careful review of the billing records, the court finds that the request for
68.69 hours is reasonable. Thus, the court finds that Hansen is entitled to a fee award of
$12,072.27 and expenses of $724.34, representing 6 percent state and local sales tax on the
fee.
CONCLUSION
Accordingly, it is
ORDERED that Hansen’s motion for attorney’s fees (Docket 27) is granted in the
amount of $12,072.27 in attorney’s fees and $724.34 in expenses.
IT IS FURTHER ORDERED that if it is determined upon effectuation of the court's
EAJA fee order that plaintiff does not owe a debt that is subject to offset under the Treasury
Offset Program and the Commissioner agrees to waive the requirements of the AntiAssignment Act, the fees will be made payable to plaintiff's attorney. If there is a debt owed
under the Treasury Offset Program and as a result the Commissioner does not agree to waive
the requirements of the Anti-Assignment Act, the remaining fee after offset will be paid by a
check made out to plaintiff but delivered to plaintiff's attorney.
Dated August 19, 2014.
BY THE COURT:
/s/Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE

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