Lays Hard v. Colvin
ORDER granting in part and denying in part 23 Motion for Attorney Fees. Signed by Chief Judge Jeffrey L. Viken on 10/23/17. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
THOMAS D. LAYS HARD,
NANCY A. BERRYHILL,1 Acting
Commissioner, Social Security
On March 9, 2016, the court entered an order (1) reversing the decision of
the Commissioner of the Social Security Administration (“Commissioner”)
denying Thomas Lays Hard’s application for benefits and (2) remanding the case
for further administrative proceedings.
Pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, Catherine Ratliff, counsel for
Mr. Lays Hard, timely moved for an award of attorney’s fees and expenses.
Mr. Lays Hard seeks an award of $14,180.50 in attorney=s fees,
court costs of $400 and expenses of $850.83 in state and local sales tax.
The Commissioner does not object to an award of EAJA fees, but objects to
Nancy A. Berryhill became the Acting Commissioner of Social Security on
January 20, 2017. Pursuant to Fed. R. Civ. P. 25(d), Ms. Berryhill is
automatically substituted for Carolyn W. Colvin as the defendant in all pending
social security cases. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C.
the amount sought in Mr. Lays Hard’s motion.
For the reasons
stated below, the court grants in part and denies in part Mr. Lays Hard’s motion.
Mr. Lays Hard requests an award of attorney’s fees at the rate of $179.50
(Docket 241-1 at p. 2).
The EAJA sets a limit of $125 per hour for
28 U.S.C. ' 2412(d)(2)(A).
However, a court may award a
higher hourly fee if “an increase in the cost of living or a special factor, such as
the limited availability of qualified attorneys for the proceedings involved,
justifies a higher fee.”
The court finds the rate of $179.50 per hour
reasonable in light of the necessary adjustment for inflation and the training and
experience of Ms. Ratliff in the practice of social security law.
Commissioner does not request a reduction in the hourly rate of $179.50 for Ms.
(Docket 25 at p. 1).
The Commissioner seeks to reduce the number of Ms. Ratliff’s billable
hours to 40 hours.
The Commissioner argues that “[a]s a general rule of
thumb, attorneys experienced in Social Security disability litigation are typically
awarded compensation for 30 to 40 hours.”
Id. at p. 2. (referencing Coleman v.
Astrue, No. C05-3045, 2007 WL 4438633 (N.D. Iowa Dec. 17, 2007)).
Commissioner contends “[n]othing about the facts and issues in this matter
supports a deviation from that average EAJA award, and certainly not one as
substantial as Plaintiff’s counsel has requested.”
Id. at pp. 2-3.
Even with a
25 percent discount already acknowledged by plaintiff, the Commissioner
submits “the amount [requested] is still well in excess of a reasonable time usage
Id. at p. 3.
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
final resolution of the matter in controversy.”
28 U.S.C. § 2412(d)(1)(C).
court also must decide whether the hours spent by Ms. Ratliff representing
Mr. Lays Hard were “reasonably expended.”
886, 901 (1984); 28 U.S.C. § 2412(d)(2)(A).
See Blum v. Stenson, 465 U.S.
The court acknowledges the
administrative record in Mr. Lays Hard’s case was extensive at over 1,000 pages.
However, after reviewing Ms. Ratliff’s time log (Docket 24-2) and considering the
parties’ arguments on this issue, the court finds certain reductions are proper.
Due to the manner in which Ms. Ratliff recorded her hours in her “Log of
Attorney Time Expenses,” (Docket 24-2), the court finds it most helpful to
aggregate the hours into five discrete categories: time spent with the client and
preparing the summons and complaint; time spent preparing the joint statement
of material facts (“JSMF”); time spent preparing the joint statement of disputed
material facts (“JSDMF”); preparing Mr. Lays Hard’s motion and supporting
memorandum to reverse the decision of the Commissioner; and time spent
preparing a reply brief.
Ms. Ratliff reports spending 4.06 hours with her new client, preparing the
summons and complaint and communicating with either the client or the client’s
The court finds that the 2.9 hours spent communicating with
family members about Mr. Lays Hard’s medical condition and issuing a letter to
the client were not reasonably spent in advocating his case before the court.
The court finds Ms. Ratliff reasonably expended 1.16 hours in this category.
Ms. Ratliff spent approximately 38.83 hours preparing the JSMF in
Mr. Lays Hard’s case.
This court requires attorneys in social security cases to
submit a highly detailed JSMF.
(Docket 12 at p. 2).
In Mr. Lays Hard’s case,
the administrative record was 1,077 pages in length, contained multiple
documents involving critical laboratory test results, multiple hospitalizations
and other critical information.
Particularly when analyzing Mr. Lays Hard’s
visual impairments and chronic kidney disease, the court relied upon the JSMF.
See Docket 21 at pp. 8-16.
Ms. Ratliff’s time log, however, shows a number of entries which seem to
be for repetitive work in drafting the JSMF and research on collateral matters.
On the other hand, it is clear the attorneys representing the Commissioner were
difficult to work with to resolve formatting and content of the JSMF and insisted
on moving significant amount of materials out of the JSMF and into the JSDMF.
Due to the level of detail the court requires of attorneys when submitting a JSMF,
the court finds Ms. Ratliff reasonably expended 29.08 hours preparing the JSMF
in Mr. Lays Hard’s case.
Ms. Ratliff spent approximately 10.75 hours preparing the JSDMF in Mr.
Lays Hard’s case.
If there are disputed facts, the parties are required to also
submit a highly detailed JSDMF.
(Docket 12 at p. 2).
In this case, the
Commissioner did not dispute the accuracy of the facts stated in the JSDMF, but
did challenge their relevancy.
(Docket 21 at p. 1).
The court incorporated all
88 paragraphs of the JSDMF into the order reversing the Commissioner’s
Id. at pp. 1-2.
The Commissioner contends the plaintiff “did not cite too many of the
entries in [the JSDMF], an indication that Plaintiff’s attorney spent time on
nonessential and non-compensable activities.”
(Docket 25 at p. 5).
mentioned above, the Commissioner opposed incorporating several of the facts
into the JSMF, which compelled Mr. Lays Hard to include those material facts in
Mr. Lays Hard’s brief referenced the JSDMF multiple times.
Docket 16 at pp. 21-24; 27-30.
The court’s order specifically relied on the
JSDMF in analyzing Mr. Lays Hard’s eye impairment issues.
pp. 8 and 13-14.
See Docket 21 at
While Mr. Lays Hard could not be certain to what extent the
court would consider the extensive citations to the administrative record in the
JSDMF, the JSDMF were factually accurate and considered relevant by the
The court finds Ms. Ratliff reasonably expended 10.75 hours preparing
Ms. Ratliff spent approximately 41.50 hours preparing her motion and
supporting memorandum to reverse the decision of the Commissioner in Mr.
Lays Hard’s case.
The court finds 41.50 hours is excessive for preparing the
initial motion and memorandum after 38.83 hours was already spent
preparing the JSMF and 10.75 hours was already spent preparing the
Using five hours to scrutinize the JSMF, the JSDMF and the
administrative record is redundant.
The court also finds restating the JSMF
and the JSDMF in a different format over 13 pages of the opening brief
The court further finds it was not necessary for Ms. Ratliff to
analyze the JSMF and the JSDMF for duplication of the record.
was not necessary for Ms. Ratliff to rewrite the step three analysis or to write
and then discount another argument.
The court finds 23.75 hours spent
preparing her motion and supporting memorandum to reverse the decision of
the Commissioner is a more appropriate amount of time given the facts of Mr.
Lays Hard’s case.
Ms. Ratliff spent approximately 10.5 hours preparing and filing a reply
brief in response to the government’s response to the motion to reverse the
decision of the Commissioner.
The Commissioner did not
expressly object to the time Ms. Ratliff spend in preparation of the reply brief.
Because of the complex nature of the issues in the case, the court finds Ms.
Ratliff reasonably expended the 10.5 hours preparing the reply brief.
Ms. Ratliff requests that an additional two hours be added to the EAJA
motion for time expended in replying to the Commissioner’s objections. The
court finds the argument for full payment under the EAJA motion and the
Commissioner’s objections were evenly balanced. The court declines the
invitation to add two additional hours to the EAJA motion in this case.
The court finds a total of 75.24 hours were reasonably expended by Ms.
Ratliff and in line with the complexity of this case, for a total attorney’s fee award
of $13,505.58.2 The Commissioner did not object to an award of 6 percent state
and local sales tax on attorney’s fees, as an “expense,” which in this case
amounts to $810.33. No objection was made to the $400 for court filing costs to
be paid from the Judgment Fund pursuant to 28 U.S.C. §§ 1920 and 2412(a)(1).
Based on the above analysis, it is
ORDERED that plaintiff’s motion (Docket 23) is granted in part and denied
Plaintiff is awarded $14,315.91 comprised of $13,505.58 in attorney’s
fees and $810.33 in expenses representing 6 percent state and local sales tax on
the attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C.
IT IS FURTHER ORDERED that plaintiff is entitled to $400 for court
filing costs to be paid from the Judgment Fund pursuant to 28 U.S.C. §§ 1920
IT IS FURTHER ORDERED that this award is without prejudice to
plaintiff’s right to seek attorney’s fees under § 206(b) of the Social Security Act,
The Commissioner’s reference to Coleman as authority to reduce Ms.
Ratliff’s hours was disingenuous. In Coleman, the administrative record “was
comparatively small, at 294 pages.” Coleman, 2007 WL 4438633, at *3. The
court further found the “case was not unusually complex . . . .” Id. Mr. Lays
Hard’s case not only contained an extensive administrative record, but involved
very complex medical issues which had not been properly analyzed by the
administrative law judge whose decision was not supported by the
administrative record. See Docket 21.
On October 15, 2014, the court authorized Mr. Lays Hard to proceed on
an in forma pauperis basis. (Docket 5). The court further ordered that “[a]ny
recovery in this action by Mr. Lays Hard shall be subject to the payment of costs
and fees, including the $400 filing fee.” Id.
42 U.S.C. § 406(b), subject to the offset provision of the Equal Access to Justice
Act; however, this award shall constitute a complete release from and bar to any
and all other claims plaintiff may have relating to the Equal Access to Justice Act
in connection with this case.
IT IS FURTHER ORDERED that under Astrue v. Ratliff, 560 U.S. 586,
595-98 (2010), Equal Access to Justice Act fees awarded by the court belong to
the plaintiff and are subject to offset under the Treasury Offset Program,
31 U.S.C. § 3716(c)(3)(B) (2006).
IT IS FURTHER ORDERED that the Equal Access to Justice Act fees
shall be paid to plaintiff Thomas D. Lays Hard but delivered to plaintiff’s
attorney Catherine G. Ratliff, 2006 South Dorothy Circle, Sioux Falls, South
Dated October 23, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
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