Diana Estrada v. Nancy A. Berryhill

Filing 27

ORDER GRANTING 25 Motion for Attorney Fees Signed by Judge Elizabeth S. Chestney. (mgr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DIANA ESTRADA,
Plaintiff,
vs.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION;
Defendant.

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SA-18-CV-00002-ESC

ORDER
Before the Court is Plaintiff Diana Estrada’s (“Plaintiff”) Motion for Attorney’s Fees
Under the Equal Access to Justice Act [#25], filed May 6, 2019. On May 17, 2019, Defendant
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (“the
Commissioner”), filed a Response in Opposition to Plaintiff’s Motion for Attorney’s Fees Under
the Equal Access to Justice Act [#26]. The undersigned has authority to enter this Order based
on the parties’ Consent to Proceed Before a United States Magistrate Judge [#12, #13]. For the
reasons set forth below, Plaintiff’s Motion for Attorney’s Fees Under the Equal Access to Justice
Act is GRANTED.
I. Introduction
On January 2, 2018, Plaintiff filed a complaint seeking judicial review of a final decision
by the Commissioner denying Plaintiff’s application for Disability Insurance Benefits under Title
II of the Social Security Act (“the Act”), 42 U.S.C. § 401 et seq. [#1-2]. On February 5, 2019,
this Court vacated the Commissioner’s decision and remanded Plaintiff’s claim for further
proceedings [#24]. Plaintiff now moves for an award of attorney’s fees in the amount of $7,733
under the Equal Access to Justice Act (“the EAJA”), 28 U.S.C. § 2412 [#25], which the
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Commissioner opposes [#26]. For the reasons set forth below, the Court will award Plaintiff
$7,733 in attorney’s fees under the EAJA.
II. Governing Law
The EAJA “provides a mandatory attorney’s fee award for a prevailing party that meets
certain financial eligibility requirements.” Baker v. Bowen, 839 F.2d 1075, 1079–80 (5th Cir.
1988). Once the plaintiff establishes these facts, the government must pay attorney’s fees, unless
it is able to prove that its position was substantially justified or that, due to special circumstances,
an award of attorney’s fees to the plaintiff would be unjust. See Herron v. Bowen, 788 F.2d
1127, 1130 (5th Cir. 1986).
The purpose of the EAJA’s mandatory fee-shifting provision “is to ensure that there is
sufficient representation for individuals who need it while minimizing the cost of attorneys’ fees
awards to the taxpayers.” Baker, 839 F.2d at 1082. An award of attorney’s fees under the EAJA
must be “reasonable.” § 2412(b). As the fee applicant, Plaintiff has the burden of demonstrating
the reasonableness of the number of hours expended on the prevailing claim. See Von Clark v.
Butler, 916 F.2d 255, 259 (5th Cir. 1990); Leroy v. City of Hous., 831 F.2d 576, 586 (5th Cir.
1987). A fee applicant is expected to exercise “billing judgment” with respect to hours worked
and to present evidence supporting the hours worked and rates claimed. Hensley v. Eckerhart,
461 U.S. 424, 437 (1983). Accordingly, “a district court may reduce the number of hours
awarded if the documentation is vague or incomplete.” La. Power & Light Co. v. Kellstrom, 50
F.3d 319, 324 (5th Cir. 1995).
In determining the reasonableness of attorney’s fees under the EAJA, the Fifth Circuit
has adopted the twelve-factor “lodestar” test enunciated in Johnson v. Ga. Highway Exp., Inc.,
488 F.2d 714, 717 (5th Cir. 1974). See Hall v. Shalala, 50 F.3d 367, 369 (5th Cir. 1995). The

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Fifth Circuit, however, has clarified that “it is not necessary for a district court to examine each
of the factors independently if it is apparent that the court has arrived at a just compensation
based upon appropriate standards.” Sanders v. Barnhart, No. 04-10600, 2005 WL 2285403, at
*2 (5th Cir. Sept. 19, 2005). “The fee thus determined cannot exceed the statutory cap, except as
expressly permitted by the EAJA.” Sandoval v. Apfel, 86 F. Supp. 2d 601, 616 (N.D. Tex.
2000).
The district court has broad discretion in setting the appropriate award of attorney’s fees,
and, on appeal, the court of appeals reviews the court’s award of attorney’s fees for abuse of
discretion and the supporting factual findings for clear error. See Watkins v. Fordice, 7 F.3d 453,
457 (5th Cir. 1993) (citing Von Clark, 916 F.2d at 258).
III. Analysis
On February 5, 2019, this Court vacated the Commissioner’s decision and remanded
Plaintiff’s claim for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).
The Fifth Circuit has held that a party who obtains a remand pursuant to the fourth sentence of §
405(g) qualifies as a “prevailing party” for purposes of attorney’s fees under the EAJA. Breaux
v. U.S. Dep’t of Health & Human Servs., 20 F.3d 1324, 1325 (5th Cir. 1994) (per curiam). It
follows that Plaintiff is the “prevailing party” in this case for EAJA purposes, and is, therefore,
entitled to an award of attorney’s fees under the EAJA.
In her fee application, Plaintiff asks the Court to award attorney’s fees in the amount of
$7,733, representing 41.8 hours of work at a rate of $185 per hour. Plaintiff attaches an
“itemization of time” confirming a total of 41.8 hours expended at the hourly rate of $185. (Doc.
25-2 at 1.) The Commissioner does not object to Plaintiff’s proposed hourly rate of $185.
Rather, the Commissioner claims that the number of hours spent by Plaintiff’s counsel was

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excessive and that, therefore, a reduced fee is warranted in this case.

The Commissioner

specifically contends that Plaintiff should be compensated for only forty hours. The Court
disagrees.
The EAJA provides that attorney’s fees “shall be based upon prevailing market rates for
the kind and quality of the services furnished,” but “shall not be awarded in excess of $125 per
hour unless the court determines that 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.”
§ 2412(d)(2)(A).
Plaintiff requests a rate of $185 per hour for the services of Karl E. Osterhout, Esq.,
which exceeds the EAJA’s presumptive statutory cap of $125 per hour. However, the EAJA
permits cost-of-living adjustments to the attorney’s hourly rate. See Shalala, 50 F.3d at 368–69.
The Court finds that the requested hourly rate of $185, which includes a $60-per-hour increase
from the statutory rate, is reasonable. This adjustment is consistent with the increase in the cost
of living in the San Antonio-New Braunfels area, as measured by the U.S. Bureau of Labor
Statistics.1 In addition, this Court has previously found this hourly rate to be reasonable. See,
e.g., Zertuche v. Berryhill, No. SA-17-CV-754-ESC, at *2 (W.D. Tex. Oct. 17, 2018) (finding an
hourly rate of $185 to be reasonable); Maldonado v. Berryhill, No. SA-16-CV-950-ESC, 2017
WL 8161009, at *2 (W.D. Tex. Nov. 21, 2017) (same).
The Court also finds the number of hours to be reasonable. A district court should
exclude from its initial fee calculation hours that were not “reasonably expended.” Hensley, 461
U.S. at 434 (1983) (internal quotation marks and citation omitted). According to Plaintiff’s fee
application, Plaintiff’s counsel spent a total of 41.8 hours on this case. The time was spent
1

See
U.S.
Bureau
of
Labor
Statistics,
https://www.bls.gov/regions/southwest/tx_sanantonio_msa.htm (last visited June 3, 2019).
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advancing Plaintiff’s appeal by, among other things, reviewing the Social Security transcript,
researching the relevant issues, drafting an opening and reply brief, and preparing this motion.
The hours submitted by Plaintiff’s counsel furthered her case, and Plaintiff’s counsel obtained a
favorable result for his client. See id. at 434, 435 (1983) (stating that the most important factor
in the reasonableness of the fee award is the “results obtained” and that, “[w]here a plaintiff has
obtained excellent results, his attorney should recover a fully compensatory fee”). Moreover,
numerous federal district courts, including this one, have found similar hours to be reasonable.
See, e.g., Hunter v. Berryhill, No. CV H-17-738, 2018 WL 6732884, at *1 (S.D. Tex. Oct. 23,
2018), report and recommendation adopted, No. 4:17-CV-00738, 2018 WL 6732871 (S.D. Tex.
Nov. 27, 2018) (finding 42.8 hours to be reasonable); Tonya G. v. Berryhill, No. 3:16-CV-2599L-BN, 2018 WL 4290787, at *2 (N.D. Tex. Aug. 23, 2018), report and recommendation
adopted, No. 3:16-CV-2599-L, 2018 WL 4281654 (N.D. Tex. Sept. 7, 2018) (finding forty-two
hours to be reasonable); Mesecher v. Berryhill, No. 4:15-CV-0859-BL, 2017 WL 4417682, at *3
(N.D. Tex. Oct. 3, 2017) (finding 43.7 hours to be reasonable); Montgomery v. Colvin, No. CV
14-3120, 2016 WL 4705730, at *3 (W.D. La. Aug. 16, 2016), report and recommendation
adopted, No. CV 14-3120, 2016 WL 4705573 (W.D. La. Sept. 8, 2016) (finding 41.5 hours to be
reasonable). Accordingly, the 41.8 hours claimed in this case are not unreasonable.
The Commissioner’s arguments to the contrary are unpersuasive. The Commissioner
maintains that the average number of hours for an attorney to work on a Social Security appeal
ranges from thirty to forty. On this point, the Commissioner relies on Garza v. Astrue, where
this Court noted that “[a] number of district courts across the country have determined that ‘[t]he
typical EAJA application in social security cases claims between thirty and forty hours.’” No.
SA-08-CV-789-XR, 2010 WL 2278348, at *2 (W.D. Tex. June 4, 2010) (quoting Hardy v.

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Callahan, No. 9:96-CV-257, 1997 WL 470355, at *9 (E.D. Tex. Aug. 11, 1997)). But, in the
very next sentence, the Garza court explained that “[a]wards for even forty-seven hours of work
are not out of line.” Id. (citing Johnson v. Astrue, No. C-07-2387 EMC, 2008 WL 3984599, at
*1 (N.D. Cal. Aug. 27, 2008)). And the Garza court ultimately found that the plaintiff’s counsel
should be compensated for forty-five hours of attorney time. See id. at * 2–3.
The Commissioner cites three other cases in which the trial court reduced the number of
hours in the plaintiff’s fee request. In Burley v. Astrue, No. 5:09-CV-40-BG, at *3 (N.D. Tex.
July 27, 2010), the Northern District of Texas reduced the number of hours from 65.84 to 48.34,
and, in Overstreet v. Colvin, No. 5:12-CV-107-C, at *3 (N.D. Tex. Sept. 12, 2013), the court
reduced the number of hours from fifty-four to forty-four. In Hardy v. Callahan, No. 9:96-CV257, 1997 WL 470355, at *9 (E.D. Tex. Aug. 11, 1997), the Eastern District of Texas reduced
the number of hours from 58.5 to forty. However, in three of the four cases relied on by the
Commissioner—Garza, Burley, and Overstreet—the court awarded attorney’s fees for more than
the number of hours requested in this case. In addition, here, Plaintiff seeks to recover for only
1.8 hours above the reported typical range.
Next, while acknowledging that the administrative transcript in this case was “lengthy,”
the Commissioner argues that this case “did not involve particularly complex facts, novel legal
issues, or legal issues of first impression.” (Commissioner’s Resp. to Pl.’s Mot. [#26] at 3–4.)
The Commissioner further argues that “Plaintiff’s attorney has not demonstrated that her request
for approximately 36.7 hours in preparation of the initial brief in this case is reasonable.” (Id. at
4.)

The Court is unpersuaded.

Plaintiff’s counsel did not represent Plaintiff during the

administrative proceedings. (Pl.’s Mot. [#25] at 5.) As such, “he could reasonably be expected
to spend time reviewing Plaintiff’s case, including the medical record and the ALJ’s decision, to

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determine the appealable issues in the case.” Hamblen v. Colvin, 14 F. Supp. 3d 801, 809–10
(N.D. Tex. 2014). It takes “significant time” to review the medical records in the administrative
transcript. McNeil v. Astrue, No. CIVA H-07-3664, 2009 WL 1451707, at *3 (S.D. Tex. May
22, 2009). Additionally, contrary to the Commissioner’s arguments, the Court does not consider
36.7 hours to review a 1,426-page administrative transcript, identify the appealable issues in the
case, and draft and edit an opening brief to be excessive. Rather, Plaintiff’s counsel has shown
that the hours spent on this case are not uncommon for similar cases.
Finally, the Commissioner asserts that “Plaintiff’s EAJA request is generally excessive,
as it exceeds the typical EAJA award for Social Security Disability matters in the Western
District of Texas.” (Commissioner’s Resp. to Pl.’s Mot. at 4.) However, the requested fee award
here is consistent with, and in some cases smaller than, fee awards in other Social Security cases
that this Court has considered. See, e.g., Tucker v. Berryhill, No. 1:16-CV-39-RP, 2018 WL
6609572, at *3 (W.D. Tex. Dec. 17, 2018) (awarding attorney’s fees in the amount of
$18,371.95); Quintanilla v. Colvin, No. 11-CV-1040-DAE, 2014 WL 5320996, at *7–8 (W.D.
Tex. Oct. 3, 2014) (awarding attorney’s fees in the amount of $10,282).
IV. Conclusion
Having reviewed the motion and response thereto, the applicable legal authorities, and
the entire record in this matter, the Court finds that Plaintiff is entitled to an award of attorney’s
fees under the EAJA. Plaintiff asks the Court to award attorney’s fees in the amount of $7,733,
representing 41.8 hours of work at a rate of $185 per hour. Because the number of hours and the
hourly rate are reasonable, the Court will award attorney’s fees in the amount of $7,733.
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for Attorney’s Under the
Equal Access to Justice Act [#25] is GRANTED.

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IT IS FURTHER ORDERED that Plaintiff is awarded attorney’s fees in the amount of
$7,733. The fees awarded shall be made payable to Plaintiff’s attorney, Karl E. Osterhout, Esq.,
and mailed to his address of record.
IT IS SO ORDERED.
SIGNED THIS 3RD DAY OF JUNE, 2019.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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