Ritter v. Colvin

Filing 26

ORDER granting in part and denying in part 22 Motion for Attorney Fees. Signed by Chief Judge Jeffrey L. Viken on 11/21/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CIV. 16-5084-JLV

STACEY L. RITTER,
Plaintiff,

ORDER

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

On May 9, 2017, the court entered an order (1) reversing the decision of
the Commissioner of the Social Security Administration (“Commissioner”)
denying plaintiff Stacey L. Ritter’s application for benefits, and (2) remanding the
case for further administrate proceedings pursuant to sentence four of 42 U.S.C.
§ 405(g).2 (Docket 20).

Pursuant to the Equal Access to Justice Act (“EAJA”),

28 U.S.C. § 2412, Catherine Ratliff, counsel for Ms. Ritter, timely moved for an
award of attorney’s fees and expenses.

(Docket 22).

The motion seeks an

award of $11,188.18 in attorney=s fees, court costs of $400 and expenses of
$727.23 in state and local sales tax.

(Docket 22 at p. 1).

Although Ms. Ratliff

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).
2The

Commissioner moved to remand the case, and plaintiff did not object.
(Docket 18).

listed 80.90 hours on her log, she recognizes that number is large and seeks
compensation for 60.68 hours.

(Dockets 23-1 at p. 2 & 23-2).

The

Commissioner does not object to an award of EAJA fees, but objects to the
number of hours for which Ms. Ratliff seeks compensation.

(Docket 24).

For

the reasons stated below, the court grants in part and denies in part Ms. Ritter’s
motion.
ANALYSIS
Ms. Ratliff asks the court to set the hourly rate at $184.38, after factoring
in the cost of living adjustment permitted by the EAJA. (Docket 23-1 at p. 2).
The Commissioner does not object to the hourly rate requested. (Docket 24).
The EAJA sets a limit of $125 per hour for attorney’s fees.
' 2412(d)(2)(A).

28 U.S.C.

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 $184.38 is reasonable considering the training and experience of
Ms. Ratliff in the practice of social security law.
The Commissioner seeks to reduce the number of Ms. Ratliff’s billable
hours to 35 hours.

(Docket 24 at p. 4).

The Commissioner argues the average

number of hours spent on a district court Social Security proceeding is 20 to 40.
Id. at p. 3 (referencing Coleman v. Astrue, No. C05-3045, 2007 WL 4438633, at
*3 (N.D. Iowa Dec. 17, 2007)).

The Commissioner contends “nothing about the

facts and issues in this matter support a deviation from that average disability
benefits EAJA award[.]”

Id.
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
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 Ms. Ratliff representing
Ms. Ritter were “reasonably expended.”
901 (1984); 28 U.S.C. § 2412(d)(2)(A).

See Blum v. Stenson, 465 U.S. 886,
The administrative record in Ms. Ritter’s

case was 1,394 pages in length, which Ms. Ratliff points out is more substantial
than usual.

(Docket 25 at p. 2).

After reviewing Ms. Ratliff’s time log (Docket

23-2) 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 time log,
the court finds it most helpful to aggregate the hours into four discrete
categories: (1) time spent with the client or performing administrative functions
and preparing the summons and complaint; (2) time spent preparing the joint
statement of material facts (“JSMF”) and joint statement of disputed facts
(“JSDF”); (3) preparing Ms. Ritter’s motion and supporting memorandum to
reverse the decision of the Commissioner; and (4) time spent preparing the
motion for attorney’s fees under the EAJA.
Under the first category of time, the court finds some reductions are
proper.

The Commissioner argues Ms. Ratliff billed 4.5 hours of work prior to

filing the complaint which is not compensable under the EAJA.

3

(Docket 24 at

p. 5).

The 0.5 hours spent developing an in forma pauperis application and

preparing to file the summons and complaint in federal district court are
compensable under EAJA.

The Commissioner argues the remaining 4.0 hours

represent administrative work prior to filing the complaint.

(Docket 24 at p. 5).

Ms. Ratliff’s reply brief on EAJA fees does not contest this point.

(Docket 25).

The court finds the remaining 4.0 hours the Commissioner highlights must be
removed from EAJA consideration.

See Dillon v. Berryhill, Civ. 15-5034, 2017

WL 4792226, at *2 (D.S.D. Oct. 23, 2017).
The Commissioner targets an additional 1.5 hours it argues represents
“[p]urely clerical or secretarial tasks[,]” which are not compensable.

(Docket 24

at p. 7) (citing Johnson v. Barnhart, No. 03-0054, 2004 WL 213183, at *3 (W.D.
Mo. Jan. 13, 2004)).

Of the 1.5 hours, 0.5 is the time the court determined

above was compensable because it was the development of Ms. Ritter’s in forma
pauperis application and preparation of her federal court summons and
complaint.

Ms. Ratliff’s reply brief does not address the Commissioner’s

objection to including the remaining 1.0 hour of clerical work, so that time is
removed from EAJA consideration.

See Stickler v. Berryhill, Civ. 14-5087, 2017

WL 4792220, at *2 (D.S.D. Oct. 23, 2017).
Turning to the second category of time, Ms. Ratliff spent 34.25 hours
preparing the JSMF and JSDF in Ms. Ritter’s case.

(Docket 25 at p. 2).

This

court requires attorneys in social security cases to submit a highly detailed
JSMF and (when necessary) JSDF.

(Docket 12 at pp. 1-2).

4

In Ms. Ritter’s case,

the administrative record was 1,394 pages in length and involved a variety of
complex medical issues.

(Docket 25 at p. 2).

Due to the lengthy and intricate

administrative record, the JSMF and JSDF were substantial, totaling 121 pages.
(Dockets 13 & 13-1).

Ms. Ratliff’s time log, however, shows a number of entries

which seem to be for repetitive work in reviewing the administrative record and
drafting the JSMF and JSDF.

(Docket 23-2 at pp. 1-2).

Due to the level of

detail the court requires of attorneys when submitting the JSMF and JSDF, and
the size of the administrative record, the court finds Ms. Ratliff reasonably
expended 25 hours preparing the JSMF in the case.

See Stickler, Civ. 14-5087,

2017 WL 4792220, at *2.
As for the third category of time, Ms. Ratliff spent 38 hours preparing Ms.
Ritter’s motion and accompanying brief to reverse the decision denying her
benefits.

(Docket 23-2 at pp. 2-3).

The court finds 38 hours is excessive for

preparing the initial motion and memorandum after 34.25 hours was already
spent preparing the JSMF and JSDF. Because of the complex nature of the
plaintiff’s challenges to the Commissioner’s decision, the court finds 25 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 and
complexity of Ms. Ritter’s case.

See Stickler, Civ. 14-5087, 2017 WL 4792220,

at *3.
The final category of time is the 3.5 hours Ms. Ratliff spent preparing the
motion for attorney’s fees. (Docket 25 at p. 6). The Supreme Court held that
5

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). Ms. Ratliff is entitled to recover for the 3.5
hours requested. See Dillon, Civ. 15-5034, 2017 WL 4792226, at *3.
The court finds a total of 54 hours were reasonably expended by Ms. Ratliff
and in line with the complexity of this case, for a total attorney’s fee award of
$9,956.52. 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).
ORDER
Based on the above analysis, it is
ORDERED that plaintiff’s motion (Docket 22) is granted in part and
denied in part.
IT IS FURTHER ORDERED that plaintiff is awarded $10,603.69 comprised
of $9,956.52 in attorney’s fees and $647.17 in expenses representing six and
one-half percent (6.5%) state and local sales tax on the attorney’s fees pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412
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
and 2412(a)(1).
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

6

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 Stacey L. Ritter, but delivered to plaintiff’s attorney
Catherine Ratliff, Ratliff Law Office, 2006 S. Dorothy Circle, Sioux Falls,
South Dakota 57106.
Dated November 21, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

7