Kern v. Commissioner of Social Security

Filing 22

MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 1/11/12. (ejs)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
BIG STONE GAP DIVISION
MACK L. KERN
Plaintiff,

v.

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Civil Action No. 2:10cv00079

MEMORANDUM OPINION

By: PAMELA MEADE SARGENT
UNITED STATES MAGISTRATE JUDGE

The plaintiff in this social security case seeks an award of attorneys’ fees
pursuant to the Equal Access to Justice Act, (“EAJA”), 28 U.S.C.A. § 2412(d)
(West 2006 & Supp. 2011) (Docket Item No. 18) (“Motion”). Based on the
reasoning set out below, the Motion will be granted, but attorneys’ fees in a
reduced amount will be awarded.

Mack L. Kern filed this action challenging the final decision of the
Commissioner of Social Security, (“Commissioner”), denying his claim for a
period of disability and disability insurance benefits, (“DIB”), and supplemental
security income, (“SSI”), under the Social Security Act, as amended, (“Act”), 42
U.S.C.A. §§ 423, 1381 et seq. (West 2003 & Supp. 2011). Jurisdiction of this
court exists pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). The Commissioner
answered the suit, filing the administrative record. Thereafter, on November 14,
2011, the undersigned recommended remanding Kern’s claims pursuant to
sentence four of 42 U.S.C. § 405(g). (Docket Item No. 16). This recommendation
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was adopted by the district judge, the Commissioner’s decision denying benefits
was vacated, and the claims were remanded for further evaluation. (Docket Item
No. 17). Counsel for Kern has filed a petition seeking approval of a fee of
$2,156.25 for representing Kern in this court. The Commissioner does not object
either to the award of attorneys’ fees or to the amount requested. (Docket Item No.
20).

Under the EAJA, the court must award attorneys’ fees to a prevailing party
in civil cases such as this one against the United States unless it finds that the
government’s position was substantially justified or that special circumstances
make an award unjust. See 28 U.S.C.A. § 2412(d)(1)(A) (West 2006 & Supp.
2011). Here, the plaintiff is the “prevailing party” because the court remanded the
case pursuant to “sentence four” of 42 U.S.C.A. § 405(g). See Shalala v. Schaefer,
509 U.S. 292, 302 (1993). The government has the burden of showing that its
position was justified. See Scarborough v. Principi, 541 U.S. 401, 403 (2004).

The government does not dispute that its position was not substantially
justified in this case, and because no special circumstances have been presented
that would make an award of attorneys’ fees unjust in this case, I find that the
plaintiff is entitled to an award of EAJA fees. However, for the reasons that
follow, I will award a fee in an amount less than that sought by Kern’s counsel.

The EAJA provides that the amount of fees awarded must be based “upon
prevailing market rates” and must not exceed $125.00 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
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higher fee.” 28 U.S.C.A. § 2412(d)(2)(A) (West 2006).

Kern’s counsel has submitted a sworn, itemized record of his time expended
in this case, showing a total of 17.25 hours. (Docket Item No. 18). Despite the
fact that some of the entries clearly involved clerical duties, there is no indication
that any of these services were performed by nonattorneys, such as secretaries or
legal assistants, and the full hourly rate is sought for all of the activities
enumerated.

As stated above, the Commissioner has not objected either to the award of
attorneys’ fees or to the amount sought. (Docket Item No. 20). However, using
this court’s fairly recent case of Chapman v. Astrue as guidance, I find that it is
proper to award a reduced hourly rate under the EAJA for nonattorney time spent
“on the theory that their work contributed to their supervising attorney’s work
product, was traditionally done and billed by attorneys, and could be done
effectively by nonattorneys under supervision for a lower rate, thereby lowering
overall litigation costs.” 2009 WL 3764009, at *1 (W.D. Va. Nov. 9, 2009)
(quoting Cook v. Brown 68 F.3d 447, 453 (Fed. Cir. 1995)). As further stated by
this court in Chapman, “it is not proper to award a full attorney rate for activities
that should more effectively be performed by nonlawyers.” 2009 WL 3764009, at
*1 (citing Spell v. McDaniel, 824 F.2d 1380, 1401-02 (4th Cir. 1987)).
Additionally, “purely clerical tasks are ordinarily a part of a law office’s overhead
and should not be compensated for at all.” Chapman, 2009 WL 3764009, at *1
(citing Keith v. Volpe, 644 F. Supp. 1312, 1316 (C.D. Cal. 1986)).

Keeping these principles in mind, an examination of the itemized record
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submitted by counsel makes clear that some of the time should be reduced in rate
or eliminated.

Additionally, there are other billed activities that would more

appropriately have been included at a nonattorney rate or are excessive. Plaintiff’s
counsel has claimed 2.25 hours for preparation of a letter, original and four copies
of the Complaint, civil cover sheet and IFP application. Plaintiff’s counsel further
claims .25 hour for receipt and review from this court of the order granting IFP.
As this court noted in Chapman, such documents are forms routinely submitted by
plaintiff’s counsel to this court. Additionally, the order granting IFP is one page in
length. Therefore, the time to review it should be minimal. That being the case, I
will reduce these combined entries to 1.00 hour of paralegal time and .25 hour of
attorney time. Plaintiff’s counsel also is claiming .25 hour for completion of
service to the United States Attorney, Attorney General and General Counsel. As
this is a purely clerical task, I will allow .25 hour of paralegal time for this activity.
Plaintiff’s counsel claims .50 hour for calling this court and the Social Security
Administration, (“SSA”), to confirm the plaintiff’s first name in response to an email from this court. I will allow .25 hour of paralegal time for this activity.
Plaintiff’s counsel claims .50 hour for receipt of the Commissioner’s Answer and
Notice of Filing and the magistrate judge’s notice of right to consent and for the
preparation of a letter to this court with plaintiff’s signed consent to the magistrate
judge’s jurisdiction. Plaintiff’s counsel further claims 2.25 hours for review of the
Transcript and time spent outlining his brief. The magistrate’s consent form is one
page in length and is a standard document routinely reviewed and completed by
plaintiff’s counsel. Therefore, I will allow 2 hours of attorney time and .25 hour of
paralegal time for these activities combined. Next, plaintiff’s counsel claims .25
hour for receipt of the briefing order and calendaring the appropriate date. As this
is purely a clerical task, I will allow .25 hour of paralegal time. Plaintiff’s counsel
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claims 1 hour for review and preparation for his brief and 4.25 hours for review
and preparation of research, drafting the summary judgment brief, review of the
case in detail and filing the brief. However, as this court stated in Chapman, “[i]n
the present context, the organization of a client’s medical records is a routine and
rote task.

Although potentially more time consuming when performed by a

nonlawyer, this task is easily handled by nonattorney staff under supervision. The
benefit of a lower hourly rate should therefore accrue to the client.” 2009 WL
3764009, at *2. Therefore, I will allow 3 hours of attorney time and 1 hour of
paralegal time for these activities. Plaintiff’s counsel claims 1 hour for receipt and
review of the Commissioner’s motion for summary judgment and supporting brief.
I will allow the attorney time requested. Plaintiff’s counsel claims .50 hour for
receipt of the notice of referral to the magistrate judge. This notice is one page in
length and is a document routinely reviewed by plaintiff’s counsel and staff. I will
allow .25 hour of paralegal time for this activity. Plaintiff’s counsel claims 1 hour
for receipt and review of this court’s Report and Recommendation. I will allow the
attorney time requested. Plaintiff’s counsel claims 1 hour for receipt and review of
this court’s order accepting the Report and Recommendation and remanding
Kern’s claims for further evaluation. As plaintiff’s counsel already had reviewed
the Report and Recommendation, the time required to review the order adopting
the same should be minimal. I will allow .25 hour of attorney time for this activity.
Lastly, plaintiff’s counsel claims 2.25 hours for preparation of the EAJA motion,
reviewing the file in detail, gathering times and dates and revising the EAJA
motion. Again, EAJA petitions are documents routinely submitted by plaintiff’s
counsel to this court. Gathering times and dates from the plaintiff’s file is a
clerical task. Therefore, I will allow 1 hour of paralegal time and .25 hour of
attorney time for these tasks.
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Based on the above reasoning, I will not award the $2,156.25 in attorneys’
fees as requested. Based on the revisions stated above, the fee computation is
divisible into two categories of costs: attorney time and nonattorney time. There
are a total of 7.75 hours of attorney time compensable at the $125 per hour
attorney rate, for a total of $968.75 in compensable attorney time. The remaining
nonattorney activities total 4.25 hours. This court has held that an award of $75
per hour is fair compensation under the circumstances for such nonattorney time.
See Chapman, 2009 WL 3764009, at *2 (citing Alexander S. v. Boyd, 113 F.3d
1373, 1377 n.1 (4th Cir. 1997) (paralegal services compensated at $65 per hour
where lead counsel compensated at $225 per hour and associate counsel at $100
per hour)). That being the case, the nonattorney time charges in this case total
$318.75. Adding the respective attorney and nonattorney totals amounts to a total
compensable fee in this case of $1,287.50.1

For the foregoing reasons, the Motion will be granted, but attorneys’ fees
under the EAJA will be awarded to plaintiff’s counsel in the reduced amount of
$1,287.50 . Although this court’s past practice has been to order that attorneys’
fees be paid directly to plaintiff’s counsel, the Fourth Circuit has ruled that
“[a]ttorney’s fees under the EAJA are [to be] awarded to the ‘prevailing party,’ not
the attorney.” Stephens v. Astrue, 565 F.3d 131, 140 (4th Cir. 2009). On June 14,
2010, the Supreme Court also held that such attorneys’ fees are to be paid to the
prevailing party. See Astrue v. Ratliff, 130 S. Ct. 2521, 2529 (U.S. 2010). Thus,
attorneys’ fees in the amount of $1,287.50 will be paid directly to the plaintiff and
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Plaintiff’s counsel initially requested a fee of $2,156.25, reflecting a total of 17.25 hours
at $125 per hour. Although the Commissioner does not object to the requested amount of
attorneys’ fees, this court is obligated under the EAJA to determine the proper fee. See Design
& Prod., Inc. v. United States, 21 Cl. Ct. 145, 152 (1990).
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sent to the business address of plaintiff’s counsel.

ENTER: January 11, 2012.
/s/

Pamela Meade Sargent

UNITED STATES MAGISTRATE JUDGE

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