Wheeler v. Colvin

Filing 30

ORDER granting 24 Motion for Attorney Fees; granting 29 Motion for Attorney Fees. Signed by Chief Judge Jeffrey L. Viken on 1/16/18. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5062-JLV

JOYCE M. WHEELER,
Plaintiff,

ORDER

vs.
NANCY A. BERRYHILL,1 Acting
Commissioner, Social Security
Administration,
Defendant.
INTRODUCTION

The court entered an order (1) reversing the decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying
plaintiff Joyce M. Wheeler’s application for benefits, and (2) remanding the case
for further administrative proceedings pursuant to sentence four of 42 U.S.C.
§ 405(g). (Docket 22). Pursuant to the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, Steven R. Pfeiffer, counsel for Ms. Wheeler, timely moved for
an award of attorney’s fees and expenses. (Docket 24). The motion seeks an
award of $8,715.64 in attorney=s fees, which includes $531.94 in state and
local sales tax, and $11.94 in expenses. (Docket 24 at p. 1). Mr. Pfeiffer’s time
log shows he spent 43.30 hours on this case. (Docket 24-1 at p. 2). The

1Nancy

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. § 405(g).

Commissioner does not object to an award of EAJA fees, but objects to the
number of hours for which Mr. Pfeiffer seeks compensation. (Docket 27). Mr.
Pfeiffer also filed a motion requesting payment for the 1.25 hours he dedicated
to preparing and filing the motion for EAJA fees.2 (Docket 29). He seeks
$251.61, which factors in $15.36 in state and local sales tax. Id. For the
reasons stated below, the court grants the motions.
ANALYSIS
Mr. Pfeiffer asks the court to set the hourly rate at $189, after factoring
in the cost of living adjustment permitted by the EAJA. (Docket 24 at p. 1).
The Commissioner does not object to the hourly rate requested. (Docket 27).
The EAJA sets a limit of $125 per hour for attorney’s fees. 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.” Id. The
court finds the rate of $189 is reasonable considering the training and
experience of Mr. Pfeiffer in the practice of social security law.
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).
The court also must decide whether the hours spent by Mr. Pfeiffer

2The

Commissioner did not file an opposition to Mr. Pfeiffer’s
supplemental motion. The court communicated informally with the parties’
attorneys and the Commissioner indicated it does not oppose the supplemental
motion.
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representing Ms. Wheeler were “reasonably expended.” See Blum v. Stenson,
465 U.S. 886, 901 (1984); 28 U.S.C. § 2412(d)(2)(A).
The Commissioner seeks to reduce the number of Mr. Pfeiffer’s billable
hours to 36.80 hours, which is a reduction of 6.5 hours. (Docket 27 at p. 8).
The Commissioner argues the average number of hours spent on a district
court Social Security proceeding is 10 to 40. Id. at p. 2 (referencing Hayes v.
Sec’y of Health & Human Servs., 923 F.2d 418, 420 (6th Cir. 1990)). According
to the Commissioner, Mr. Pfeiffer’s request is “unreasonable” because the case
was a “mainly routine Social Security disability case.” Id. at p. 3. Aside from
generally contending Mr. Pfeiffer billed an unreasonable amount of time, the
Commissioner specifically claims Mr. Pfeiffer’s brief supporting the motion to
reverse in this case substantially overlaps with another brief Mr. Pfeiffer filed in
a different Social Security case. Id. at pp. 3-8.
The court rejects the Commissioner’s overarching argument that this was
a “mainly routine” case. Id. at p. 3. The administrative record in Ms. Wheeler’s
case was 966 pages in length, which is more substantial than usual. (Docket
28 at p. 2). Having reviewed the administrative record and the medical and
legal issues in the parties’ filings, the court finds this case presented complex
issues within a sizable administrative record. See Dillon v. Berryhill, CIV. 155034, 2017 WL 4792226, at *2 (D.S.D. Oct. 23, 2017) (rejecting the argument
that the case was “not novel or complex” based on the court’s review of the
record and the intricate issues presented). The Commissioner’s general
argument on this point does not warrant a reduction in EAJA fees.
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While the Commissioner seeks to reduce the total hours of EAJA fees,
the only category of time the Commissioner pinpoints for a reduction is Mr.
Pfeiffer’s work on the brief supporting Ms. Wheeler’s motion to reverse. (Docket
27 at pp. 3-8). The Commissioner asserts it “specifically objects to the number
of hours Mr. Pfeiffer spent drafting the brief because some of the legal
reasoning is recycled in another brief filed around the same time.” Id. at p. 3.
The critical point here is that Mr. Pfeiffer’s time log indicates he spent 14.5
hours on Ms. Wheeler’s brief. (Docket 24-1). The issue is whether Mr. Pfeiffer
“reasonably expended” 14.5 hours on the brief. See Lays Hard v. Berryhill,
CIV. 14-5063, 2017 WL 4797797, at *1-3 (D.S.D. Oct. 23, 2017). Based on
this case’s complexity and the extensive size of the administrative record, the
court finds Mr. Pfeiffer reasonably expended 14.5 hours on the brief. See id.
(finding 23.75 hours was reasonable for a 1,077-page record with similarly
difficult medical and legal issues). The court rejects the Commissioner’s
objection on this point.
Mr. Pfeiffer seeks an additional 1.25 hours for the time expended
preparing the motion for attorney’s fees. (Docket 29). Consistent with the prior
motion, Mr. Pfeiffer seeks a rate of $189 per hour. Id. The Supreme Court
held attorney’s fees under the EAJA may be awarded for the time spent
applying for the EAJA fee award. Commissioner, Immigration & Naturalization
Service v. Jean, 496 U.S. 154, 162 (1990). Mr. Pfeiffer is entitled to recover for
the 1.25 hours requested.

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In line with the complexity of the case, the court finds Mr. Pfeiffer
reasonably expended a total of 44.55 hours, which includes the 43.30 hours
detailed in plaintiff’s first motion and 1.25 in the supplemental motion.
(Dockets 24 & 29). With an hourly rate of $189, the total attorney’s fee award
for 44.55 hours is $8,419.95.
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motions (Dockets 24 & 29) are granted.
IT IS FURTHER ORDERED that plaintiff is awarded $8,979.18 comprised
of $8,419.95 in attorney’s fees and $547.29 in expenses representing six and
one-half percent (6.5%) state and local sales tax on the attorney’s fees and
$11.94 in expenses pursuant to the Equal Access to Justice Act, 28 U.S.C.
§ 2412
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,
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).
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IT IS FURTHER ORDERED that the Equal Access to Justice Act fees
shall be paid to plaintiff Joyce M. Wheeler but delivered to plaintiff’s attorney
Steven R. Pfeiffer, 2522 W. 41st Street #340, Sioux Falls, South Dakota 57105.
Dated January 16, 2018.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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