United States District Court, D. South Dakota, Western Division
DUSTIN W. A.,  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 Dustin
A.'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 33). Pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, Catherine Ratliff, counsel for Dustin A., timely
moved for an award of attorney's fees and expenses.
(Docket 37). The motion seeks an award of $10, 059 in
attorney's fees, court costs of $400 and expenses of
$653.84 in state and local sales tax. (Docket 37 at p. 1).
Although Ms. Ratliff listed 72.5 hours on her log, she
recognizes that No. is large and seeks compensation for 54.38
hours. (Dockets 38-1 ¶ 5 & 38-2 at p. 6). 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 39). For the reasons stated below, the
court grants in part and denies in part Dustin A.'s
Ratliff asks the court to set the hourly rate at $185, after
factoring in the cost of living adjustment permitted by the
EAJA. (Docket 23-1 ¶ 3). The Commissioner does not
object to the hourly rate requested. (Docket 39 at p. 1). 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
$185 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 38.5 hours. (Docket 39 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 “nothing about the
facts and issues in this matter supports a deviation from
that average disability benefits EAJA award.”
Id. at p. 3.
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 Dustin A. 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 Dustin A.'s
case was 374 pages in length, which the court finds to be an
average size record. (Docket 39 at p. 2). After reviewing Ms.
Ratliff's time log (Docket 28-2) 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 Dustin A.'s motion and supporting memorandum
asking the court to take judicial notice; (4) preparing
Dustin A.'s motion and supporting memorandum to reverse
the decision of the Commissioner; and (5) 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 targets one hour it argues
represents administrative activities which are not
compensable because “[t]he EAJA compensates only for
work done in federal court ‘in a civil action.'
” (Docket 39 at p. 6) (referencing 28 U.S.C. §
2412(d)). Ms. Ratliff's reply brief on EAJA fees does not
oppose the Commissioner's objection to .75 hours as a
deduction. (Docket 40 at p. 4). The court finds one hour must
be deducted for administrative activities performed prior to
the filing of the complaint. (Docket 38-2 at p. 1). The court
finds the remaining .5 hour is compensable. 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 18.25 hours
preparing the JSMF in this case. (Docket 38-2 at p. 2). This
court requires attorneys in social security cases to submit a
highly detailed JSMF. (Docket 13 at pp. 1-2). The
Commissioner does not oppose “[p]laintiff's request
for 18.25 spent preparing the JSMF . . . given that Plaintiff
later reduces [these] requested hours by 25%.” (Docket
39 at p. 5). As the court understands the response, the
Commissioner does not oppose an award for 13.69 hours.
Ratliff's time log includes entries related to her time
communicating with her client, “reviewing his
life-pattern and work history, effects of bipolar and
reactive antipathy toward others. He says he's not going
back to Dr. [G.], DDS will send to Dr. [S.].” (Docket
38-2 at p. 2). It is difficult to decipher from the grouping
of activities how much time was spent on these client-related
activities. The total time spent on activities on the date in
question totaled 4.5 hours. Id. To avoid repetitive
work with the other entries related to the JSMF, the court
finds Ms. Ratliff reasonably expended 17.5 hours preparing
the JSMF in the case. See Stickler, 2017 WL
4792220, at *2.
the third category of time, Ms. Ratliff spent 14.42 preparing
Dustin A.'s motion and accompanying brief and a reply
brief on the judicial notice issue. (Docket 38-2 at pp. 3-4).
The Commissioner opposes all this time. (Docket 39 at p. 5).
The Commissioner argues:
Plaintiff's motion . . . was not well taken. . . . as the
data did not support [plaintiff's] contention that an
individual with less than a high school education could not
perform the occupations the vocational expert listed. Rather
the data supported the vocational expert's testimony that
individuals with [p]laintiff's education could, and did,
perform the occupations.
Id. at p. 7. Ms. Ratliff contends the motion was
“justified . . . because, had [p]laintiff won on that
issue, it would have necessarily resulted in remand, and no
further hours spent in court.” (Docket 40 at p. 3).
court denied plaintiff's motion. (Docket 20). The court
concluded it would “not assume the VE failed to
consider the job No. erosion based on [Dustin A.'s]
education. There is no evidence the VE failed to consider all
of the factors necessary to arrive at a valid opinion for
consideration by the ALJ.” Id. at p. 6. The
court found Ms. Ratliff, as new counsel for the appeal, could
not “interject a new theory of cross-examination at
this level.” Id. at p. 7. The court finds
plaintiff is not entitled to ...