United States District Court, D. South Dakota, Western Division
ERNEST B. S., III,  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 Ernest
S.'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 19). Pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, Catherine Ratliff, counsel for Ernest S., timely
moved for an award of attorney's fees and expenses.
(Docket 22). The motion seeks an award of $8, 623.12 in
attorney's fees, court costs of $400 and expenses of
$560.50 in state and local sales tax. Id. at p. 1.
Although Ms. Ratliff listed 63 hours on her log, she
recognizes that No. is large and seeks compensation for 47.25
hours. (Dockets 23-1 ¶ 5 and 23-2 at p. 3). 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 plaintiff's motion.
Ratliff asks the court to set the hourly rate at $182.50,
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 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
$182.50 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 no more than 35 hours. (Docket 24 at p. 4).
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 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 Ernest S. were
“reasonably expended.” See Blum v.
Stenson, 465 U.S. 886, 901 (1984); 28 U.S.C. §
2412(d)(2)(A). 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.
Those reductions ultimately do not impact Ms. Ratliff's
attorney's fee request as her self-imposed 15 percent
reduction to 47.25 hours is less than the total hours she
reasonably expended on the case.
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 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 Ms. Ratliff billed two
hours for work prior to filing the complaint which is not
compensable under the EAJA. (Docket 24 at p. 5). The
Commissioner argues this time represents administrative work
prior to filing the complaint. Id. Ms. Ratliff's
reply brief on EAJA fees does not contest this point. (Docket
25 at p. 2). The court finds the two 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 .75 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)). Ms. Ratliff's
reply brief does not address the Commissioner's objection
to including the remaining .75 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 23.25 hours
preparing the JSMF and JSDF in Ernest S.'s case. (Docket
23-2 at pp. 1-2). This court requires attorneys in social
security cases to submit a highly detailed JSMF and (when
necessary) a JSDF. (Docket 9 at pp. 1-2). In plaintiff's
case, the administrative record was extensive and involved a
variety of complex medical issues. See Docket 19.
Due to the lengthy and intricate administrative record, the
JSMF and JSDF were substantial, totaling 51 pages. (Docket
10). 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 23.25 hours preparing the JSMF and JSDF
in the case. See Stickler, 2017 WL 4792220, at *2.
the third category of time, Ms. Ratliff spent 31 hours
preparing plaintiff's motion and accompanying brief to
reverse the decision denying him benefits. (Docket 23-2 at
pp. 2-3). The court finds 31 hours is excessive for preparing
the initial motion and memorandum after 23.25 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 the case. See
Stickler, 2017 WL 4792220, at *3.
Ratliff spent 6.25 hours reviewing the Commissioner's
responsive brief and preparing plaintiff's reply brief.
(Docket 23-1 at p. 3). The court finds this an appropriate
amount of time given the facts and complexity of
plaintiff's case. See Stickler, 2017 WL 4792220,
final category of time is the two hours Ms. Ratliff spent
preparing the motion for attorney's fees. (Docket 25 at
p. 2). 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 the two hours
requested. See Dillon, 2017 WL 4792226, at *3.
court finds a total of 56.5 hours were reasonably expended by
Ms. Ratliff and in line with the complexity of this case.
However, Ms. Ratliff only seeks an award for a total of 47.25
hours of her work, for a total attorney's fee award of
$8, 623.12. (Dockets 23-1 ¶ 5; 23-2 at p. 3 and 25). No.
objection was made to the $400 for court filing ...