United States District Court, D. South Dakota, Western Division
JOYCE M. WHEELER, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner, Social Security Administration, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
court entered an order (1) reversing the decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying plaintiff Joyce M.
Wheeler's application for benefits, and (2) remanding the
case for further administrative proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). (Docket 22).
Pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, Steven R.
Pfeiffer, counsel for Ms. Wheeler, timely moved for an award
of attorney's fees and expenses. (Docket 24). The motion
seeks an award of $8, 715.64 in attorney's fees, which
includes $531.94 in state and local sales tax, and $11.94 in
expenses. (Docket 24 at p. 1). Mr. Pfeiffer's time log
shows he spent 43.30 hours on this case. (Docket 24-1 at p.
2). The Commissioner does not object to an award of EAJA
fees, but objects to the number of hours for which Mr.
Pfeiffer seeks compensation. (Docket 27). Mr. Pfeiffer also
filed a motion requesting payment for the 1.25 hours he
dedicated to preparing and filing the motion for EAJA
fees. (Docket 29). He seeks $251.61, which
factors in $15.36 in state and local sales tax. Id.
For the reasons stated below, the court grants the motions.
Pfeiffer asks the court to set the hourly rate at $189, after
factoring in the cost of living adjustment permitted by the
EAJA. (Docket 24 at p. 1). The Commissioner does not object
to the hourly rate requested. (Docket 27). 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 $189 is
reasonable considering the training and experience of Mr.
Pfeiffer in the practice of social security law.
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. Pfeiffer representing Ms. Wheeler were
“reasonably expended.” See Blum v.
Stenson, 465 U.S. 886, 901 (1984); 28 U.S.C. §
Commissioner seeks to reduce the number of Mr. Pfeiffer's
billable hours to 36.80 hours, which is a reduction of 6.5
hours. (Docket 27 at p. 8). The Commissioner argues the
average number of hours spent on a district court Social
Security proceeding is 10 to 40. Id. at p. 2
(referencing Hayes v. Sec'y of Health & Human
Servs., 923 F.2d 418, 420 (6th Cir. 1990)). According to
the Commissioner, Mr. Pfeiffer's request is
“unreasonable” because the case was a
“mainly routine Social Security disability case.”
Id. at p. 3. Aside from generally contending Mr.
Pfeiffer billed an unreasonable amount of time, the
Commissioner specifically claims Mr. Pfeiffer's brief
supporting the motion to reverse in this case substantially
overlaps with another brief Mr. Pfeiffer filed in a different
Social Security case. Id. at pp. 3-8.
court rejects the Commissioner's overarching argument
that this was a “mainly routine” case.
Id. at p. 3. The administrative record in Ms.
Wheeler's case was 966 pages in length, which is more
substantial than usual. (Docket 28 at p. 2). Having reviewed
the administrative record and the medical and legal issues in
the parties' filings, the court finds this case presented
complex issues within a sizable administrative record.
See Dillon v. Berryhill, CIV. 15-5034, 2017 WL
4792226, at *2 (D.S.D. Oct. 23, 2017) (rejecting the argument
that the case was “not novel or complex” based on
the court's review of the record and the intricate issues
presented). The Commissioner's general argument on this
point does not warrant a reduction in EAJA fees.
the Commissioner seeks to reduce the total hours of EAJA
fees, the only category of time the Commissioner pinpoints
for a reduction is Mr. Pfeiffer's work on the brief
supporting Ms. Wheeler's motion to reverse. (Docket 27 at
pp. 3-8). The Commissioner asserts it “specifically
objects to the number of hours Mr. Pfeiffer spent drafting
the brief because some of the legal reasoning is recycled in
another brief filed around the same time.” Id.
at p. 3. The critical point here is that Mr. Pfeiffer's
time log indicates he spent 14.5 hours on Ms. Wheeler's
brief. (Docket 24-1). The issue is whether Mr. Pfeiffer
“reasonably expended” 14.5 hours on the brief.
See Lays Hard v. Berryhill, CIV. 14-5063, 2017 WL
4797797, at *1-3 (D.S.D. Oct. 23, 2017). Based on this
case's complexity and the extensive size of the
administrative record, the court finds Mr. Pfeiffer
reasonably expended 14.5 hours on the brief. See Id.
(finding 23.75 hours was reasonable for a 1, 077-page record
with similarly difficult medical and legal issues). The court
rejects the Commissioner's objection on this point.
Pfeiffer seeks an additional 1.25 hours for the time expended
preparing the motion for attorney's fees. (Docket 29).
Consistent with the prior motion, Mr. Pfeiffer seeks a rate
of $189 per hour. Id. The Supreme Court held
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). Mr. Pfeiffer is entitled to recover for
the 1.25 hours requested.
with the complexity of the case, the court finds Mr. Pfeiffer
reasonably expended a total of 44.55 hours, which includes
the 43.30 hours detailed in plaintiff's first motion and
1.25 in the supplemental motion. (Dockets 24 & 29). With
an hourly rate of $189, the total attorney's fee award
for 44.55 hours is $8, 419.95.
on the above analysis, it is ORDERED that plaintiff's
motions (Dockets 24 & 29) are granted.
FURTHER ORDERED that plaintiff is awarded $8, 979.18
comprised of $8, 419.95 in attorney's fees and $547.29 in
expenses representing six and one-half percent (6.5%) state
and local sales tax on the attorney's fees and $11.94 in