United States District Court, D. South Dakota, Western Division
STACEY L. RITTER, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN, CHIEF JUDGE.
9, 2017, the court entered an order (1) reversing the
decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying plaintiff
Stacey L. Ritter's application for benefits, and (2)
remanding the case for further administrate proceedings
pursuant to sentence four of 42 U.S.C. §
405(g). (Docket 20). Pursuant to the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412,
Catherine Ratliff, counsel for Ms. Ritter, timely moved for
an award of attorney's fees and expenses. (Docket 22).
The motion seeks an award of $11, 188.18 in attorney's
fees, court costs of $400 and expenses of $727.23 in state
and local sales tax. (Docket 22 at p. 1). Although Ms.
Ratliff listed 80.90 hours on her log, she recognizes that
number is large and seeks compensation for 60.68 hours.
(Dockets 23-1 at p. 2 & 23-2). The Commissioner does not
object to an award of EAJA fees, but objects to the number of
hours for which Ms. Ratliff seeks compensation. (Docket 24).
For the reasons stated below, the court grants in part and
denies in part Ms. Ritter's motion.
Ratliff asks the court to set the hourly rate at $184.38,
after factoring in the cost of living adjustment permitted by
the EAJA. (Docket 23-1 at p. 2). The Commissioner does not
object to the hourly rate requested. (Docket 24). 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
$184.38 is reasonable considering the training and experience
of Ms. Ratliff in the practice of social security law.
Commissioner seeks to reduce the number of Ms. Ratliff's
billable hours to 35 hours. (Docket 24 at p. 4). The
Commissioner argues the average number of hours spent on a
district court Social Security proceeding is 20 to 40.
Id. at p. 3 (referencing Coleman v. Astrue,
No. C05-3045, 2007 WL 4438633, at *3 (N.D. Iowa Dec. 17,
2007)). The Commissioner contends “nothing about the
facts and issues in this matter support a deviation from that
average disability benefits EAJA award[.]” Id.
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 Ms. Ritter 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. Ritter's
case was 1, 394 pages in length, which Ms. Ratliff points out
is more substantial than usual. (Docket 25 at p. 2). After
reviewing Ms. Ratliff's time log (Docket 23-2) 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
time log, the court finds it most helpful to aggregate the
hours into four discrete categories: (1) time spent with the
client or performing administrative functions and preparing
the summons and complaint; (2) time spent preparing the joint
statement of material facts (“JSMF”) and joint
statement of disputed facts (“JSDF”); (3)
preparing Ms. Ritter's motion and supporting memorandum
to reverse the decision of the Commissioner; and (4) time
spent preparing the motion for attorney's fees under the
the first category of time, the court finds some reductions
are proper. The Commissioner argues Ms. Ratliff billed 4.5
hours of work prior to filing the complaint which is not
compensable under the EAJA. (Docket 24 at p. 5). The 0.5
hours spent developing an in forma pauperis
application and preparing to file the summons and complaint
in federal district court are compensable under EAJA. The
Commissioner argues the remaining 4.0 hours represent
administrative work prior to filing the complaint. (Docket 24
at p. 5). Ms. Ratliff's reply brief on EAJA fees does not
contest this point. (Docket 25). The court finds the
remaining 4.0 hours the Commissioner highlights must be
removed from EAJA consideration. See Dillon v.
Berryhill, Civ. 15-5034, 2017 WL 4792226, at *2 (D.S.D.
Oct. 23, 2017).
Commissioner targets an additional 1.5 hours it argues
represents “[p]urely clerical or secretarial tasks[,
]” which are not compensable. (Docket 24 at p. 7)
(citing Johnson v. Barnhart, No. 03-0054, 2004 WL
213183, at *3 (W.D. Mo. Jan. 13, 2004)). Of the 1.5 hours,
0.5 is the time the court determined above was compensable
because it was the development of Ms. Ritter's in
forma pauperis application and preparation of her
federal court summons and complaint. Ms. Ratliff's reply
brief does not address the Commissioner's objection to
including the remaining 1.0 hour of clerical work, so that
time is removed from EAJA consideration. See Stickler v.
Berryhill, Civ. 14-5087, 2017 WL 4792220, at *2 (D.S.D.
Oct. 23, 2017).
to the second category of time, Ms. Ratliff spent 34.25 hours
preparing the JSMF and JSDF in Ms. Ritter's case. (Docket
25 at p. 2). This court requires attorneys in social security
cases to submit a highly detailed JSMF and (when necessary)
JSDF. (Docket 12 at pp. 1-2). In Ms. Ritter's case, the
administrative record was 1, 394 pages in length and involved
a variety of complex medical issues. (Docket 25 at p. 2). Due
to the lengthy and intricate administrative record, the JSMF
and JSDF were substantial, totaling 121 pages. (Dockets 13
& 13-1). Ms. Ratliff'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 and
JSDF. (Docket 23-2 at pp. 1-2). Due to the level of detail
the court requires of attorneys when submitting the JSMF and
JSDF, and the size of the administrative record, the court
finds Ms. Ratliff reasonably expended 25 hours preparing the
JSMF in the case. See Stickler, Civ. 14-5087, 2017
WL 4792220, at *2.
the third category of time, Ms. Ratliff spent 38 hours
preparing Ms. Ritter's motion and accompanying brief to
reverse the decision denying her benefits. (Docket 23-2 at
pp. 2-3). The court finds 38 hours is excessive for preparing
the initial motion and memorandum after 34.25 hours was
already spent preparing the JSMF and JSDF. Because of the
complex nature of the plaintiff's challenges to the
Commissioner's decision, the court finds 25 hours spent
preparing her motion and supporting memorandum to reverse the
decision of the Commissioner is a more appropriate amount of
time given the facts and complexity of Ms. Ritter's case.
See Stickler, Civ. 14-5087, 2017 WL 4792220, at *3.
final category of time is the 3.5 hours Ms. Ratliff spent
preparing the motion for attorney's fees. (Docket 25 at
p. 6). The Supreme Court held that attorney's fees under
the EAJA may be awarded for the time spent applying for the
EAJA fee award. Commissioner, Immigration &
Naturalization Service v. Jean, 496 U.S. 154, 162
(1990). Ms. Ratliff is entitled to recover for the 3.5 hours
requested. See Dillon, Civ. 15-5034, 2017 WL
4792226, at *3.
court finds a total of 54 hours were reasonably expended by
Ms. Ratliff and in line with the complexity of this case, for
a total attorney's fee award of $9, 956.52. No objection
was made to the $400 for court filing costs to be paid from