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Stickler v. Berryhill

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

October 23, 2017

DARCIE JEAN STICKLER, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN CHIEF JUDGE.

         INTRODUCTION

         On March 24, 2016, the court entered an order (1) reversing the decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Darcie Strickler's application for benefits and (2) remanding the case for the purpose of calculating and awarding benefits. (Docket 16). Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, Brian Gosch, counsel for Ms. Stickler, timely moved for an award of attorney's fees and expenses. (Docket 18). Ms. Stickler seeks an award of $17, 812.50 in attorney's fees, and court costs of $400.[2] (Docket 20 at p. 1). The Commissioner does not object to an award of EAJA fees, but objects to the amount sought in Ms. Stickler's motion. (Docket 21). For the reasons stated below, the court grants in part and denies in part Ms. Stickler's motion.

         ANALYSIS

         Mr. Gosch's opening brief asks that his hourly rate be paid at $125, the rate stated in the EAJA. (Docket 20 ¶ 6). His reply brief asks the court to set the hourly rate at $185.55, after factoring in the cost of living adjustment permitted by the EAJA. (Docket 22 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. In other cases in 2015, the year during which work in the present case occurred, the court adopted $178.75 as the reasonable per hour rate. See Colhoff v. Colvin, CIV. 13-5002 (D.S.D. 2013), Docket 35 at pp. 5-6; Baker v. Colvin, CIV. 15-5042 (D.S.D. 2015), Dockets 21 at p. 1 and 23. The court finds the rate of $178.75 is reasonable considering the training and experience of Mr. Gosch in the practice of social security law. The Commissioner's objection did not acknowledge the anticipated increase in the hourly rate over the rate set in § 2412(d)(2)(A). (Docket 21). After Mr. Gosch filed his reply brief, the Commissioner did not seek leave to file a sur-rebuttal brief opposing the requested increase in the hourly rate.

         The Commissioner seeks to reduce the number of Mr. Gosch's billable hours to 35 hours. (Docket 21 at p. 2). The Commissioner argues “the typical number of hours spent on a district court Social Security proceeding is 20 to 40.” Id. (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 Mr. Gosch has requested.” 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 Mr. Gosch representing Ms. Stickler were “reasonably expended.” See Blum v. Stenson, 465 U.S. 886, 901 (1984); 28 U.S.C. § 2412(d)(2)(A). The administrative record in Ms. Stickler's case was 707 pages in length, which the Commissioner acknowledges is “slightly longer than average . . . .” (Docket 21 at p. 4). After reviewing Mr. Gosch's time log (Docket 20-1) and considering the parties' arguments on this issue, the court finds certain reductions are proper.

         Due to the manner in which Mr. Gosch recorded his hours in his time log, the court finds it most helpful to aggregate the hours into four discrete categories: time spent with the client or performing administrative functions and preparing the summons and complaint; time spent preparing the joint statement of material facts (“JSMF”); preparing Ms. Stickler's motion and supporting memorandum to reverse the decision of the Commissioner; and time spent preparing a reply brief.[3]

         Mr. Gosch reports spending 15.5 hours with his new client, preparing the summons and complaint, performing organizational activities and communicating with either the client or her family members. Mr. Gosch asks to be reimbursed for his time organizing and reviewing the file, separate and apart from preparing the JSMF and performing other administrative functions because a former attorney with South Dakota Advocacy Services left the file in a state of disarray. (Docket 22 at p. 3). Although the court recognizes that South Dakota Advocacy Services is a small non-profit organization, “[i]t is appropriate to distinguish between legal work, in the strict sense, and . . . clerical work . . . and other work which can be accomplished by non-lawyers but which a lawyer may do because he has no other help available.” Missouri v. Jenkins by Agyei, 491 U.S. 274, 288 n.10 (1989). The “dollar value [of that work] is not enhanced because a lawyer does it.” Id. Mr. Gosch has not identified an hourly value associated with these clerical or secretarial activities which are typically part of law practice overhead. See Lacy v. Massanari, No. 4:01CV3000, 2002 WL 269382, at *3 (D. Neb. Feb. 26, 2002) (referencing Jenkins by Agyei, 491 U.S. at 288 n.10; other citations omitted). Those tasks must be removed from EAJA consideration.

         The court finds the 13 hours spent communicating with the client or a family member and organizing or reviewing the file in advance of those sessions were not reasonably spent in advocating his case before the court. The court finds Mr. Gosch reasonably expended 3.5 hours in this category.

         Mr. Gosch spent approximately 48.53 hours preparing the JSMF in Ms. Stickler's case. This court requires attorneys in social security cases to submit a highly detailed JSMF. (Docket 7 at pp. 1-2). In Ms. Stickler's case, the administrative record was 700 pages in length, contained multiple documents involving clinical evaluations of Ms. Stickler's mental conditions for consideration at step 3 of the evaluation process, her activities of daily living, lay witness testimony and the testimony of her treating psychiatrist. While the JSMF was not as detailed as the court prefers and the parties chose to cite separately to the administrative record, the parties and the court did rely on the JSMF. See Dockets 13-14 & 16.

         Mr. Gosch'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. Due to the level of detail the court requires of attorneys when submitting a JSMF and the size of the administrative record, the court finds Mr. Gosch reasonably expended 25 hours preparing the JSMF in the case. (Docket 15).

         Mr. Gosch spent approximately 46.5 hours preparing his motion and supporting memorandum to reverse the decision of the Commissioner in Ms. Stickler's case. The court finds 46.5 hours is excessive for preparing the initial motion and memorandum after 48.5 hours was already spent preparing the JSMF. Using three hours to scrutinize the administrative record and the JSMF is redundant. Because of the complex nature of the plaintiff's challenges to the Commissioner's decision, the court finds 26.5 hours spent preparing his motion and supporting ...


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