United States District Court, D. South Dakota, Western Division
THOMAS D. LAYS HARD, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE.
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.
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).
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.
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.
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.
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.
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.
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).
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
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.
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 ...