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Lays Hard v. Berryhill

United States District Court, D. South Dakota, Western Division

October 23, 2017

THOMAS D. LAYS HARD, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         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. (Docket 21). 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. (Docket 23). 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. Id. at p. 1. The Commissioner does not object to an award of EAJA fees, but objects to the amount sought in Mr. Lays Hard's motion. (Docket 25). For the reasons stated below, the court grants in part and denies in part Mr. Lays Hard's motion.

         ANALYSIS

         Mr. Lays Hard requests an award of attorney's fees at the rate of $179.50 per hour. (Docket 241-1 at p. 2). 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 $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. The Commissioner does not request a reduction in the hourly rate of $179.50 for Ms. Ratliff's fees. (Docket 25 at p. 1).

         The Commissioner seeks to reduce the number of Ms. Ratliff's billable hours to 40 hours. Id. 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)). The 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 and fee.” 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). The court also must decide whether the hours spent by Ms. Ratliff representing Mr. Lays Hard were “reasonably expended.” See Blum v. Stenson, 465 U.S. 886, 901 (1984); 28 U.S.C. § 2412(d)(2)(A). 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 family members. 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. (Docket 15).

         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 decision. 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). As mentioned above, the Commissioner opposed incorporating several of the facts into the JSMF, which compelled Mr. Lays Hard to include those material facts in the JSDMF. Mr. Lays Hard's brief referenced the JSDMF multiple times. See 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. See Docket 21 at pp. 8 and 13-14. 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 court. The court finds Ms. Ratliff reasonably expended 10.75 hours preparing the JSDMF.

         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 JSDMF. 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 unnecessary. The court further finds it was not necessary for Ms. Ratliff to analyze the JSMF and the JSDMF for duplication of the record. Finally, it was not necessary for Ms. Ratliff to rewrite the step three analysis or to write and then discount another ...


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