Opinion
03-0054-CV-W-REL-SSA
January 13, 2004
Sharon J Meyers, Kansas City, MO, for plaintiff
Joel Fahnestock May, Kansas City, MO, for defendant
ORDER
Before the court is plaintiff's motion for an award of attorney's fees both pursuant to the Equal Access to Justice Act (UEAJA"), 28 U.S.C. § 2412, and pursuant to 42 U.S.C. § 406(b)(1) which authorizes an award of attorney's fees not to exceed 25 percent of the past-due benefits payable out of the past-due benefits. Plaintiff seeks $5,229.75 in fees, representing 36.7 hours of attorney work at $142.50 per hour. Defendant objects to the amount of the fee under the EAJA, and opposes the award of fees pursuant to § 406(b)(1) as premature since no past award has yet been calculated.
A plaintiff is entitled to EAJA fees if the Commissioner's position was not "substantially justified." Brouwers v. Bowen, 823 F.2d 273, 275 (8th Cir. 1987). It is the Commissioner's burden to prove its position was substantially justified. Gowen v. Bowen, 855 F.2d 613, 615 (8th Cir. 1988). In this case, the Commissioner admits that its position was not substantially justified, as the Commissioner has agreed that EAJA fees should be paid.
Reasonable fees.
Although the EAJA allows for reimbursement of attorney's fees and other expenses, those items must be reasonable. 28 U.S.C. § 2412 (d)(2) (A). The court has a duty to make an independent evaluation of the reasonableness of counsel's bill. Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). The district court should exclude from this initial fee calculation hours that were not "reasonably expended." S.Rep. No. 94-1011, p. 6 (1976).
The skill and experience of lawyers vary widely as does the availability of paralegals or other assistants. Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer billing a client ethically is obligated to exclude such hours from her fee submission. "In the private sector, `billing judgment' is an important component in fee setting. It is no less important here. Hours that are not properly billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." Copeland v. Marshall. 641 F.2d 880, 891 (B.C. Cir. 1980) (en banc) (emphasis in original).
The court has discretion to reduce the amount of the fee award based on the substance of the representation. Kramer v. Apfel, 57 F. Supp.2d 774, 775 (S.D. Iowa 1999), citing Hickey v. Secretary of HHS, 923 F.2d 585, 586 (8th Cir. 1991) (per curiam). The court should consider not merely whether the attorney's work was valuable to the client, but whether the issues were novel or complex, whether the record is voluminous or the facts are unusually complex, whether the attorney's specialized skill or knowledge was required, and what the usual number of hours for similar cases are in the area. Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994); Kramer v. Apfel, 57 F. Supp.2d 774, 775 (S.D. Iowa 1999); Vanover v. Chater, 946 F. Supp. 744, 746 (E.D. Mo. 1996).
Defendant argues that counsel represented plaintiff since during the administrative stage, including prior to and during the administrative hearing. Under these circumstances, the 1.75 hours billed for reviewing the file and medical records is excessive.
Michael Blanton was the attorney present at plaintiff's administrative hearing, but the record shows that his address is identical to plaintiff's counsel and counsel was plaintiff's recognized representative since January 2001. Therefore, it is presumed that Mr. Blanton is a member of counsel's firm.
Counsel billed .25 hour for reviewing defendant's answer and my scheduling order. Both of those documents are one page long and are the standard boiler plate documents filed in every Social Security case. I find that .25 hour is excessive for reviewing those documents and will reduce the billable time to .10 hour.
Counsel billed 2.25 hours for reviewing and writing the hearing testimony section for plaintiff. The transcript of plaintiff's hearing testimony was only 22 pages long, and the summary in plaintiff's brief was only two and one half pages long. Nearly two and a half hours to review and summarize that testimony is excessive. I will reduce the billable time to 1.0 hour.
Counsel billed 3.25 hours for writing the medical records section of plaintiff's brief. Counsel additionally billed 1.5 hours for reviewing the medical records prior to writing this section of the brief. The medical records section of plaintiff's brief is approximately four pages long. The medical records in this case do not contain any unusual tests, diagnoses, medications, etc., that would require extensive research in order to put into layman's terms. In fact, the only explanations of the medical records provided by counsel are the GAF scores. Plaintiff's medical records deal with depression, anxiety, worry, stress, and other feelings associated with a depression-related impairment. No additional work was required in order to summarize the medical records in an understandable way. Nearly an hour per page is excessive for writing the medical records section of the brief. I will reduce this billable time to one hour.
This is not meant to imply that lengthening the medical records section of a brief will justify a higher payment. It is mentioned merely to emphasize the unreasonableness of the billing for this portion of the brief.
Counsel billed .5 hour for writing the "standard of review" section. The standard of review section in plaintiff's brief is word for word the same as the standard of review section counsel has used in previous Social Security briefs, including the case citations. See Darla Beesley v. Jo Anne Barnhart, 02-0865-CV-W-JTM-SSA, plaintiff's brief filed March 14, 2003; Clarence Dexter v. Larry Massanari, 01-0978-CV-W-SOW-SSA, plaintiff's brief filed March 14, 2002. Since the same few paragraphs are used in all of counsel's briefs, the only work required on this section is copying it into the present brief. This time will be excluded from the billable hours.
Counsel billed 2.00 hours for reviewing case law for RFC and evidence from treating physician, and another 2.75 hours for writing "section for RFC and making specific findings." I am unsure exactly what counsel is referring to. The initialism "RFC" does not appear anywhere in plaintiff's brief. The phrase "residual functional capacity" appears one time in plaintiff's brief, and that is in the section quoting the hypothetical question from the ALJ to the vocational expert. There is no legal argument or analysis dealing with a residual functional capacity. Counsel billed 2.50 hours for reviewing the case law on credibility, decisions based on less than the whole record, and inconsistent mental status. She billed 3.50 hours for writing the section for inconsistent findings, proper weight accorded medical evidence, and decision based on less than the whole record. There are two legal issues raised in plaintiff's brief. The first deals with failing to consider substantial evidence that detracted from the weight of the decision, and the second (which is only two paragraphs long) deals with credibility.
I find that the 2.00 hours and 2.75 hours bills for reviewing case law and writing a section on RFC, which I have been unable to find in plaintiff's brief, is excessive, especially considering the fact that counsel billed an additional 11.5 hours for writing the legal arguments and conclusion to the brief. Therefore, the 4.75 hours dealing with RFC will be excluded from the billable hours.
Clerical tasks.
Plaintiff's counsel has billed 1.80 hours of attorney time for administrative tasks not requiring the skill of an attorney. Work which could have been done by support staff is excluded from an award under the EAJA. Purely clerical or secretarial tasks should not be billed at a lawyer or paralegal rate, regardless of who performs them. The court inJohnson v. Georgia Highway Express, Inc., 488 F.2d 714, 717 (5th Cir. 1974), wrote:
It is appropriate to distinguish between legal work, in the strict sense, and . . . clerical work . . . and other work which can often be accomplished by non-lawyers but which a lawyer may do because he has no other help available. Such non-legal work may command a lesser rate. Its dollar value is not enhanced just because a lawyer does it.
(quoted by the Supreme Court in Missouri v. Jenkins, 491 U.S. 274, 288, n. 10 (1989)).
Therefore, the following 1.90 hours of billed time will be excluded from the award of fees:
12/10/02 Received and recorded Appeals Council denial .10
01/21/03 Faxed complaint and civil cover sheet to .10 district court, requested return call with receipt number for electronic filing
01/21/03 Telephone conference with Robin, District .10 Court, regarding claimant's case number, 03-54, case assigned to Magistrate Judge Larsen
01/21/03 Electronically filed IFP application .10
01/23/03 Recorded order granting motion to proceed IFP .10
01/23/03 Electronically filed complaint .10
02/12/03 Served U.S. Attorney's Office .25
02/12/03 Sent summons to Jo Anne Barnhart and John .25 Ashcroft
02/19/03 Received and recorded stamped District Court .10 process receipt
05/27/03 Recorded answer to district court .10
06/09/03 Recorded District Court contract from plaintiff .10
07/03/03 Electronically filed brief .25
12/22/03 Electronically filed EAJA documents .25
Therefore, with the above adjustments to the time billed by plaintiff's counsel, I find that 23.9 hours at a rate of $142.50 is a reasonable fee pursuant to the Equal Access to Justice Act.
Finally, I find that the request for fees pursuant to § 406(b)(1) is premature since no past award has yet been calculated. Therefore, it is
ORDERED that plaintiff's motion for an award of attorney's fees in the amount of $3,405.75 pursuant to the Equal Access to Justice Act is granted. It is further
ORDERED that plaintiff's request for fees pursuant to § 406(b)(1) is denied.