United States District Court, D. South Dakota, Western Division
SHEILA K. K., 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 Sheila
K.'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 25). Pursuant to the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, Catherine Ratliff, counsel for Sheila K., timely
moved for an award of attorney's fees and expenses.
(Docket 27). The motion seeks an award of $9, 402.49 in
attorney's fees, court costs of $400 and expenses of
$611.16 in state and local sales tax. Id. at p. 1.
Although Ms. Ratliff listed 68.23 hours on her log, she
recognizes that number is large and seeks compensation for
51.17 hours. (Dockets 29-1 ¶ 5 & 29-2 at p. 3). The
Commissioner does not object to an award of EAJA fees, but
objects to the number of hours for which Ms. Ratliff seeks
compensation. (Docket 30). For the reasons stated below, the
court grants Sheila K.'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 29-1 ¶ 3). The Commissioner does not
object to the hourly rate requested. (Docket 30). 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 number of Ms. Ratliff's
billable hours to 44.49 hours. (Docket 30 at p. 1). The
Commissioner argues the average number 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 “[n]othing about the
facts and issues in this matter supports a deviation from the
average EAJA award.” Id. at p. 4.
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 Sheila K. 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 Sheila K.'s
case was 1, 220 pages in length. (Docket 30 at p. 2). The
court finds this to be an above average size record. After
reviewing Ms. Ratliff's time log (Docket 29-2) 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 the
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. Ms. Ratliff billed 4.41 hours in this category.
The time 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 2.66
hours 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 16.16 hours
preparing the JSMF and the JSDF in Sheila K.'s case.
(Docket 24-2 at p. 2). The Commissioner argues Ms.
Ratliff's “time spent on the JSMF be reduced by
1.41 hours for extension requests and 3.5 hours for
duplication of non-compensable administrative work.”
(Docket 30 at p. 5). The Commissioner asserts Ms.
Ratliff's “unadjusted request for preparation of
the JSMF is 14 hours.” Id. at p. 7.
court requires attorneys in social security cases to submit a
highly detailed JSMF. (Docket 10 at pp. 1-2). In Sheila
K.'s case, the administrative record was 1, 220 pages in
length and involved a variety of complex medical issues.
See Dockets 16 and 25. Due to the lengthy and
intricate administrative record, the JSMF and the JSDF were
substantial, totaling 43 pages. (Dockets 16 and 16-1). 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 16.16
hours preparing the JSMF in the case. See Stickler,
Civ. 14-5087, 2017 WL 4792220, at *2.
the third category of time, Ms. Ratliff spent 35.5 hours
preparing plaintiff's motion and accompanying brief to
reverse the decision denying her benefits. (Docket 39-2 at p.
2). The Commissioner argues this amount of time is excessive.
(Docket 30 at p. 7). The Commissioner submits 4 hours should
be deducted for “duplicative work reviewing the case
history and medical evidence, ” and 5 hours deducted
for “reviewing the JSMF, JSDF, ALJ decision, Appeals
Council order, and the new neurocognitive listing.”
Id. In her reply brief, Ms. Ratliff contends
“this was a complex and difficult case and involved
expert witnesses whose neutrality was doubtful, although the
risk was high that their expertise would be credited.”
(Docket 31 at p. 3).
court finds 35.5 hours is excessive for preparing the initial
motion and memorandum after the time already spent preparing
the JSMF and the JSDF. 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, Civ.
14-5087, 2017 WL 4792220, at *3.
Commissioner agrees Ms. Ratliff spent 9.5 hours preparing a
reply brief. (Docket 30 at p. 5). Because Ms. Ratliff agreed
to discount the total billing by 25 percent, the Commissioner
does not oppose an award for 7.16 hours in this category.
Id. The court finds 6.5 hours is a more appropriate
amount of time given the facts and complexity of this case.
See Stickler, Civ. 14-5087, 2017 WL 4792220, at *3.
final category of time is the 2.5 hours Ms. Ratliff spent
preparing the motion for attorney's fees. (Dockets 29-2
at p. 3 and 31 at p. 4). Ms. Ratliff asks the court to
recalculate the hourly rate in this category to $187.80.
Id. 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 2.5 hours
requested. See Dillon, Civ. 15-5034, 2017 WL
4792226, at *3. The court finds no reason to recalculate the
hourly rate. To do so in ...