United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN CHIEF JUDGE
court entered an order (1) reversing the decision of the
Commissioner of the Social Security Administration
(“Commissioner”) denying plaintiff Christine
C.'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 21). Pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, Catherine Ratliff, counsel for Christine C.,
timely moved for an award of attorney's fees and
expenses. (Docket 23). The motion seeks an award of $10,
714.46 in attorney's fees, court costs of $400 and
expenses of $696.44 in state and local sales tax.
Id. at p. 1. Although Ms. Ratliff listed 77.75 hours
on her log, she recognizes that No. is large and seeks
compensation for 58.31 hours. (Dockets 24-1 ¶ 5 &
24-2 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 25). For the reasons
stated below, the court grants Christine C.'s motion.
Ratliff asks the court to set the hourly rate at $183.75
after factoring in the cost of living adjustment permitted by
the EAJA. (Docket 24-1 ¶ 3). The Commissioner does not
object to the hourly rate requested. (Docket 25). 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
$183.75 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 35 hours. (Docket 25 at p. 5). 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 “the facts and issues
in this matter do not support a deviation from that average
EAJA award, which is 20-40 hours.” 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 Christine C. 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 Christine
C.'s case was 819 pages in length, which the court finds
to be an above average size record. After reviewing Ms.
Ratliff's time log (Docket 24-2) 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. Ms. Ratliff billed 1.42 hours in this category.
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.
Administrative activities and time which should otherwise
have been performed by a legal secretary prior to the filing
of the complaint must be removed from EAJA consideration.
See Stickler v. Berryhill, Civ. 14-5087, 2017 WL
4792220, at *2 (D.S.D. Oct. 23, 2017). The court finds .67
hour 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 28.83 hours
preparing the JSMF in Christine C.'s case. (Docket 24-2
at pp. 1-2). The Commissioner objects to this high No. of
hours because “Ms. Ratliff began representing
[Christine C.] in May 2015, and thus, she was familiar with
the facts, evidence, and issues in this case before
[Christine C.] sought judicial review by this Court in August
2016.” (Docket 25 at p. 3). Other than this general
complaint, the Commissioner does not suggest an appropriate
No. of hours in this category.
court requires attorneys in social security cases to submit a
highly detailed JSMF. (Docket 11 at pp. 1-2). In Christine
C.'s case, the administrative record was 819 pages in
length and involved a variety of complex medical issues. See
Dockets 14 and 21. Due to the lengthy and intricate
administrative record, the JSMF was substantial, totaling 76
pages. (Docket 14). Ms. Ratliff's time log, however,
shows a No. of entries which seem to be for repetitive work
in reviewing the administrative record and drafting the JSMF.
(Docket 24-2 at pp. 1-2). 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 25 hours preparing the JSMF in
the case. See Stickler, 2017 WL 4792220, at *2.
the third category of time, Ms. Ratliff spent 35.25 hours
preparing plaintiff's motion and accompanying brief to
reverse the decision denying her benefits. (Docket 34-2 at
pp. 2-3). The Commissioner argues 28.83 hours for preparing
the JSMF and then approximately 13 pages of the opening brief
to recite the JSMF is excessive. (Docket 25 at p. 3). The
Commissioner contends “only the last 21 pages of her
brief” addressed argument and that section
“contained a substantial amount of boilerplate
quotations . . . .” Id. The Commissioner
contends “none of the points of error raised . . . were
novel or complex.” Id. at p. 4. Based on Ms.
Ratliff's experience representing claimants in disability
cases “it is unlikely she would be unable to handle a
routine disability case within the time normally required by
other attorneys.” Id. at p. 5.
response, Ms. Ratliff contends “writing the opening
brief was time-taking tedium: sorting out medical evidence
the AC admitted to the record and the quantity of evidence it
rejected and placed somewhere else in the 832-page record, as
well as sorting out evidence from an unrelated case that SSA
had mistakenly placed in [Christine C.'s] administrative
record.” (Docket 26 at p. 3). Ms. Ratliff argues the
brief needed to point out in detail the ALJ “minimized
[Christine C.'s] disabling impairments. Counsel organized
the evidence to paint a picture of [Christine C.'s]
progressive but related and overlapping diagnoses . . . and
to show the real-world impact of her disabling impairments on
her persistent efforts to find ever-less-demanding work that
she could do . . . .” Id. (referencing Docket
16 at pp. 3-15). Ms. Ratliff submits the court should not
“compensate counsel for her expertise, neither [should]
it penalize her.” Id. at p. 5 (citing Cruz
v. Apfel, 48 F.Supp.2d 226, 231 (E.D.N.Y. 1999)
(internal citation omitted).
court finds 35.25 hours is excessive for preparing the
initial motion and memorandum after 28.83 hours was already
spent preparing the JSMF. As counsel for plaintiff, Ms.
Ratliff was compelled to prepare comprehensive arguments in
response to the ALJ's decision at multiple steps in the
evaluation process. This briefing was reasonably necessary to
advocate Christine C.'s positions on appeal. Because of
the nature of the plaintiff's challenges to the
Commissioner's decision, the court finds 30 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 bills for 12.25 hours preparing a reply brief.
(Docket 24-2 at pp. 3-4). The Commissioner argues this time
is excessive because “[t]he reply brief was only15
pages long and largely summarized her previous position
regarding each issue.” (Docket 25 at p. 5). Ms. Ratliff
argues this time was necessary “to reply to [the]
Commissioner's vigorous arguments in [the
Commissioner's brief].” (Docket 26 at p. 6). The
court finds ...