United States District Court, D. South Dakota, Western Division
ELIZABETH D. H.,  Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
court entered an order reversing the decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying plaintiff Elizabeth
H.'s application for benefits and remanding the case for
further administrative proceedings pursuant to sentence four
of 42 U.S.C. § 405(g). (Docket 19). Pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, Catherine Ratliff, counsel for Elizabeth H.,
timely moved for an award of attorney's fees and
expenses. (Docket 22). The motion seeks an award of $9,
606.25 in attorney's fees, court costs of $400 and
expenses of $624.41 in state and local sales tax.
Id. at p. 1. Although Ms. Ratliff listed 62.31 hours
on her log, she recognizes that No. is large and seeks
compensation for 53 hours. (Dockets 23-1 at p. 2 & 23-2
at p. 4). The Commissioner does not object to an award of
EAJA fees, but objects to the No. of hours for which Ms.
Ratliff seeks compensation. (Docket 24). For the reasons
stated below, the court grants in part and denies in part
Ratliff asks the court to set the hourly rate at $181.25,
after factoring in the cost of living adjustment permitted by
the EAJA. (Docket 23-1 ¶¶ 3 & 5). 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 $181.25 is
reasonable considering the training and experience of Ms.
Ratliff in the practice of social security law.
Commissioner seeks to reduce the No. of Ms. Ratliff's
billable hours to 41 hours. (Docket 24 at p. 1). The
Commissioner argues the average No. of hours spent on a
district court Social Security proceeding is 20 to 40.
Id. at p. 2 (referencing Coleman v. Astrue,
No. C05-3045, 2007 WL 4438633, at *3 (N.D. Iowa Dec. 17,
2007)). The Commissioner contends “this case had three
hearings (due to plaintiff moving from one state to another),
and some hearings involved medical issues. However, some of
the time Ms. Ratliff spent on this case was duplicative or
furthered her practice of drafting the Joint Statement of
Material Facts (‘JSMF') with details of
questionable relevance or materiality.” Id. at
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 Elizabeth H. 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 Elizabeth
H.'s case was 554 pages in length,  which the court
finds is an average size.
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”); (3)
preparing plaintiff'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 EAJA.
the first category of time, the court finds some reductions
are proper. The Commissioner argues .75 hours of the 2.23
hours Ms. Ratliff billed for work prior to filing the
complaint is not compensable under the EAJA. (Docket 24 at p.
8). 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
only other entry in this category relating to the drafting of
pleadings is entry 8 for .16 hours. (Docket 23-2 at p. 1).
The court finds the remaining 1.57 hours in this category
must be removed from EAJA consideration. See Dillon v.
Berryhill, Civ. 15-5034, 2017 WL 4792226, at *2 (D.S.D.
Oct. 23, 2017).
to the second category of time, Ms. Ratliff spent 23.13 hours
preparing the JSMF in plaintiff's case. (Docket 23-2 at
pp. 1-3). This court requires attorneys in social security
cases to submit a highly detailed JSMF. (Docket 11 at pp.
1-2). In this case, the administrative record was 554 pages
in length and involved a variety of complex medical issues.
Due to the lengthy and intricate administrative record, the
JSMF was substantial, totaling 49 pages. (Docket 12). Ms.
Ratliff's time log, however, shows several entries which
seem to be for repetitive work in reviewing the
administrative record and drafting the JSMF. (Docket 23-2 at
Ratliff contends a significant portion of her time in this
category was spent working with the Commissioner's
attorneys to structure the JSMF in a format acceptable to the
Commissioner. (Docket 25 at p. 1). The Commissioner asserts
Ms. Ratliff spent a great portion of her time including
information in the JSMF which was not argued in
plaintiff's brief. (Docket 24 at 6-7). The Commissioner
contends entry 35 for .25 hours represents a clerical task
which is not compensable under the EAJA. (Docket 8 at p. 8)
(referencing Skolnekovich v. Astrue, No. 11-5128,
2013 WL 501136, at *2 (W.D. Ark. Feb 11, 2013)).
court expects the JSMF to be developed based on the record
and be structured to solely support the positions asserted by
the parties. Due to the level of detail the court requires of
attorneys when submitting the JSMF, and the size of the
administrative record, the court finds Ms. Ratliff reasonably
expended 20 hours preparing the JSMF in the case.
See Stickler, 2017 WL 4792220, at *2.
the third category of time, Ms. Ratliff spent 21.25 hours
preparing plaintiff's motion and accompanying brief to
reverse the decision denying her benefits. (Docket 23-2 at
pp. 3-4). The Commissioner argues three hours for writing the
procedural history and statement of facts and an additional
three hours to “[b]oil statements of fact” is
excessive and unwarranted. (Docket 24 at p. 7) (referencing
Docket 23-2 at p. 3). The Commissioner contends “it was
not reasonable for an experienced attorney like Ms. Ratliff
to spend 6 more hours on the factual summary for her main
brief.” Id. at p. 8. The Commissioner objects
to Ms. Ratliff spending time on “Social Security Ruling
16-3p, 2016 WL 1119029, which would not be effective until a
year and a half after September 30, 2014 [the date of the ALJ
decision; see administrative record at p.
30].” (Docket 24 at p. 9). The Commissioner asks the
court to deduct one hour for this activity. Id. In
the reply brief Ms. Ratliff argues while SSR 16-3p was
included in plaintiff's opening brief, the
Commissioner's responsive brief did not object to the
court's consideration of the ruling in judging
credibility. (Docket 25 at pp. 3-4).
court finds the hours claimed by Ms. Ratliff are excessive
for preparing the initial motion and memorandum after 23.13
hours were already spent preparing the JSMF. The court does
not find it necessary to reassert the facts from the
administrative record (as stated in the JSMF) in
plaintiff's brief. Because of the nature of the
plaintiff's challenges to the Commissioner's
decision, the court finds 15.25 hours spent preparing her
motion and supporting memorandum to reverse the decision of