United States District Court, D. South Dakota, Western Division
TONYA S. G., Plaintiff,
ANDREW SAUL, 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'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 20 at p. 19). Pursuant to
the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412, Catherine Ratliff, counsel for plaintiff,
timely moved for an award of attorney's fees and
expenses. (Docket 23). The motion seeks an award of $12,
877.88 in attorney's fees, court costs of $400 and
expenses of $837.06 in state and local sales tax.
Id. at p. 1. Although Ms. Ratliff listed 94.09 hours
on her log, she recognizes that No. is large and seeks
compensation for 70.56 hours. (Dockets 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,
plaintiff's motion is granted.
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 24-1 ¶ 5). The Commissioner does not
object to the hourly rate requested. (Docket 25 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
$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 60.56 hours. (Docket 25 at p.
4). The Commissioner argues the average No. of hours spent on
a district court Social Security proceeding is 20 to 40.
Id. (references omitted).
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 plaintiff 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 25 percent
reduction to 70.56 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”); (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 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, including time consulting with the
client, 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 1.5 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 39.75 hours
preparing the JSMF in this case. (Docket 24-2 at pp. 1-2).
The Commissioner contends the proposed initial JSMF of 94
pages “far exceeded the proposed statements typically
prepared by other attorneys in their cases, which generally
are no more than 20 or 30 pages.” (Docket 25 at p. 3).
“[T]he Commissioner submits that it is reasonable to
reduce the . . . hours Plaintiff's counsel billed for
reviewing the record and preparing her initial proposed
statement by . . . 10 hours.” Id. at pp. 3-4.
“The Commissioner does not challenge the 5.0 hours
billed from September 1, 2017, through September 22, 2017,
for reviewing the Commissioner's proposed revisions and
subsequently filing the [JSMF] with the Court.”
Id. at p. 4 n.1.
court requires attorneys in social security cases to submit a
highly detailed JSMF. (Docket 12 at pp. 1-2). In this case
the administrative record was 1, 282 pages in length and
involved a variety of complex medical issues. See Dockets 20,
24-2 at p. 2 and 26 at p. 3. Due to the lengthy and intricate
administrative record, the JSMF was substantial, totaling 93
pages, with an additional six pages of a glossary of
prescription medications and medical terminology. (Docket
14). 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 34.75 hours preparing the JSMF in the case. See
Stickler, 2017 WL 4792220, at *2. Again, the Commissioner
does not object to the 5 hours expended by Ms. Ratliff in
making the defendant's requested revisions and filing the
JSMF with the court. (Docket 25 at p. 4 n.1).
the third category of time, Ms. Ratliff spent 23.25 hours
preparing plaintiff's motion and accompanying brief to
reverse the decision denying her benefits. (Docket 24-2 at p.
3). Because of the complex nature of the plaintiff's
challenges to the Commissioner's decision, the court
finds 23.25 hours spent preparing her motion and supporting
memorandum to reverse the decision of the Commissioner is an
appropriate amount of time given the facts and complexity of
the case. See Stickler, 2017 WL 4792220, at
Ratliff spent 22.75 hours reviewing the Commissioner's
responsive brief and preparing plaintiff's reply brief.
(Docket 23-1 at p. 3). The court finds this to be an excess
amount of time to prepare a responsive brief. It appears
based on Ms. Ratliff's log entries that a significant
portion of her time was spent doing activities traditionally
assigned to a secretary or other staff member. The court
finds 10.5 hours to be an appropriate amount of time given
the facts and complexity of plaintiff's case. See
Stickler, 2017 WL 4792220, at *3.
final category of time is the 1.75 hours Ms. Ratliff spent
preparing the motion for attorney's fees. (Docket 24-2 at
p. 4). 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