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Beckett v. Berryhill

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

June 18, 2018

KODEE R. BECKETT, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY;[1] Defendant.

          OPINION AND ORDER GRANTING IN PART MOTION FOR ATTORNEY'S FEES

          ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE

         Plaintiff Kodee R. Beckett (Beckett) filed a motion for attorney's fees under the Equal Access to Justice Act (EAJA), Doc. 23, following this Court's Opinion and Order Reversing and Remanding the Commissioner's Decision to deny Beckett's application for supplemental security income, Doc. 21. Beckett seeks $17, 706.31 in fees and $34.78 in costs.[2] Doc. 23. The Commissioner of Social Security (Commissioner) does not oppose an award of attorney's fees or the hourly rate Beckett's counsel charges, but argues that the $34.78 claimed by Beckett as costs should be considered "expenses" under the EAJA, and objects to the number of hours for which Beckett's counsel seeks compensation. Doc. 26 at 2. For the reasons stated below, this Court grants in part Beckett's motion.

         I. Background

         This Court issued a lengthy Opinion and Order Reversing and Remanding the Commissioner's Decision, Doc. 21, which provided a detailed explanation of the facts and issues of this case. In short, Beckett sought a hearing with an Administrative Law Judge (ALJ) after the Commissioner twice denied her application for supplemental security income. AR 146, 152-54, 178. The ALJ ultimately determined that Beckett was not disabled, and the Appeals Council declined to review that decision, finding it was proper under the law. AR 1-6, 37-57. Beckett subsequently filed an appeal in this Court, arguing both that the ALJ improperly discounted the opinions of certain treatment providers and non-treatment sources, and that the ALJ's decision was not supported by substantial evidence. This Court found that the ALJ committed legal error by discounting the opinions of Beckett's treating psychiatrist based solely on a lack of treatment records which the ALT neglected to seek, and remanded the decision on that basis. Doc. 21 at 33-39.

         II. Analysis

         A. "Costs" vs. "Expenses" under the EAJA

         Beckett characterized the $34.78 incurred from various mailings as "costs" initially, but Eighth Circuit precedent identifies postage as an allowable "expense" under the EAJA. See Kelly v. Bowen, 862 F.2d 1333, 1336 (8th Cir. 1988). The Commissioner requests this distinction be made because "expenses" are paid from the agency fund whereas "costs" are paid from the judgment fund. Doc. 26 at 1-2. Accordingly, this Court will award Beckett $34.78 as an allowable expense under the EAJA.

         B. Compensable hours

         The Commissioner does not object to the award of attorney fees or the hourly rate of $189.88 proposed in this case, but argues the 93.25 hours claimed by Beckett's counsel are not reasonable and requests this Court award fees for 38 hours instead. Doc. 26 at 2-5. The Commissioner contends that "Plaintiffs counsel has failed to justify such a drastic deviation from the average EAJA award in Social Security disability cases compensating a plaintiffs counsel for 20 to 40 hours of work." Doc. 26 at 3. According to the Commissioner, the eight hours billed to prepare this EAJA motion "demonstrates the excessive nature of [Beckett's counsel's] billing" because attorneys typically only bill one to two hours for such work. Doc. 26 at 4. Beckett's counsel argues that there are no redundant or unnecessary hours billed because no time has been claimed for the review and editing work of other staff attorneys in this case, and asserts that the hours, far from being excessive, represent a conservative reporting. Doc. 27 at 1-2.

         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 counsel were "reasonably expended." See 28 U.S.C. § 2412(d)(2)(A); Blum v. Stenson. 465 U.S. 886, 901 (1984). Upon review of the time log submitted by Beckett's counsel and consideration of the parties' arguments, this Court finds that some modest reductions to the compensable hours are warranted.

         The hours reported in the time log fall into the following categories: miscellaneous, time spent reviewing the file and preparing the initial brief, time spent preparing the reply brief, and time spent preparing this EAJA motion.

         In the miscellaneous category, Beckett's counsel reported five hours devoted to tasks such as preparing some initial pleadings, emailing the United States Attorney's office, and research for filing in forma pauperis. Doc. 24-1 at 1. These tasks took place in November and December of 2016, shortly after attorney Hamilton took over Beckett's case. This Court finds that attorney Hamilton reasonably expended five hours in this category.

         Attorney Hamilton reported 57.5 hours reviewing the file and preparing the initial brief. Doc. 24-1 at 1-2. The Administrative Record in this case was 951 pages, and attorney Hamilton's initial brief, which provided a thorough overview of Beckett's history and argued that the ALJ improperly weighted the opinions of 13 different medical and non-medical sources, was 40 pages. See Doc. 18. Having thoroughly reviewed the Administrative Record in producing the 43 page Opinion and Order Reversing and Remanding the Decision of the Commissioner, this Court is fully aware of the careful examination that was required of the lengthy treatment records contained in the Administrative Record in order to obtain a complete understanding of Beckett's history and conditions. Although this Court did not endorse every argument Beckett made, the initial brief in part persuaded this Court that the ALJ had not provided permissible reasons for discounting the opinions of several sources. Because of the extensive nature of Beckett's challenges to the Commissioner's decision, as well as the voluminous Administrative Record in this case, this Court finds that attorney Hamilton reasonably expended 57.5 hours reviewing the file and preparing the initial brief.

         Attorney Hamilton reported 22.75 hours in the preparation of the reply brief. Doc. 24-1 at 2. In the Commissioner's response brief in opposition to Beckett's motion for summary judgment, Doc. 26, each source opinion was discussed and arguments made that the weight given them by the ALJ was justified. Attorney Hamilton was reasonable in addressing each of these arguments and cited extensively to the Administrative record once again. However, the substance of the arguments set forth in this brief was substantially similar to that presented in the initial brief. The Commissioner did present a new argument in the response brief that there was no step-two error in the ALJ's five-step sequential evaluation process, Doc. 26 at 6-8, but because Beckett was not appealing to this Court on the basis of a step-two error, no additional effort was required to address that argument. While it was no doubt a time-consuming affair to address the multiple sources in this case and the corresponding arguments of the Commissioner as to why the ...


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