Spiller v. Commissioner of Social Security
Opinion of the Court
DECISION AND ENTRY ADOPTING REPORT AND RECOMMENDATION (DOC. # 24) IN ITS ENTIRETY; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS (DOC. #20); AWARDING PLAINTIFF THE SUM OF $4,355.00 IN ATTORNEY’S FEES AND COSTS UNDER THE EQUAL ACCESS TO JUSTICE ACT; AND TERMINATION ENTRY
The Court has reviewed the January 29, 2013 Report and Recommendation of United States Magistrate Judge Michael J. Newman (Doc. #24), to whom this case was referred pursuant to 28 U.S.C. § 636(b), and noting that no objections have been filed thereto and that the time for filing such objections under Fed. R.Civ.P. 72(b)(2) has expired, hereby ADOPTS said Report and Recommendation.
Accordingly, it is hereby ORDERED that Plaintiffs motion for attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”) (Doc. # 20) is GRANTED IN PART AND DENIED IN PART; and Plaintiff is AWARDED the sum of $4,355.00 ($4,005.00 in attorney’s fees and $350.00 in costs). This case remains TERMINATED upon the Court’s docket.
REPORT AND RECOMMENDATION
On September 24, 2012, 2012 WL 4364303, Judge Rice reversed and remanded this case, under Sentence Four of 42 U.S.C. § 405(g), for further proceedings. Doc. 18. This matter is now back before the Court upon Plaintiffs motion for an award of attorney’s fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”) (doc. 20), the Commissioner’s memorandum in opposition (doc. 21), and Plaintiffs reply memorandum (doc. 23).
I.
Plaintiff seeks an EAJA fees/costs award of $5,305.00 ($4,955.00 in attorney’s fees, and $350.00 in costs). Doc. 20. In support of the motion, Plaintiffs counsel has provided an affidavit attesting to his background and hourly rate (including an itemized statement of services counsel rendered). Doc. 20-1. The Commissioner challenges Plaintiffs requested EAJA fees/costs on two grounds: (1) Plaintiff is not entitled to EAJA fees because the government’s position was substantially justified; and (2) even if Plaintiff is entitled to EAJA fees, the amount sought is excessive. Doc. 21.
An award of EAJA fees may be made in a Social Security disability action
II.
Here, there is no dispute that three of these four criteria are met. Plaintiffs motion for EAJA fees was timely,
In light of Judge Rice’s findings in his Decision and Entry—reversing the Commissioner’s decision and remanding this case under Sentence Four for further proceedings—the undersigned finds that the government’s position was not substantially justified. See doc. 18. As more fully explained in Judge Rice’s opinion, the ALJ applied improper legal standards by failing to give appropriate weight to the medical opinion of Plaintiffs treating psychologist, and also by failing to consider the cumulative effects of Plaintiffs impairments. See doc. 18 at PagelD 115-17. Accordingly, the Commissioner has not met his burden of establishing substantial justification for his position in this case. Accord Meyers v. Heckler, 625 F.Supp. 228, 235-36 (S.D.Ohio 1985); Wallace v. Comm’r of Soc. Sec., No. 1:09-cv-382, 2011 U.S. Dist. LEXIS 136118, *3-13, 2011 WL 5913970, at *1-5 (S.D.Ohio Nov. 4, 2011).
III.
Having decided that Plaintiff is entitled to an EAJA award, the Court will now determine if the requested attorney’s fees are reasonable. As a preliminary matter, the Court notes that Plaintiff seeks the statutory hourly rate of $125.00. See 28 U.S.C. § 2412(d)(2)(A); doc. 20. The Commissioner does not challenge that hourly rate. See doc. 21. Instead, the Commissioner claims the number of hours expended by Plaintiffs counsel is excessive.
The Commissioner’s initial argument — that Plaintiffs counsel unreasonably bills
Additionally, the Commissioner challenges the legitimacy of several time entries submitted by Plaintiff’s counsel on the basis they are non-compensable clerical or secretarial tasks. See doc. 21 at PageID 144-45. Purely clerical or secretarial tasks — i.e., non-legal work — should not be billed (even at a paralegal rate). See Missouri v. Jenkins, 491 U.S. 274, 288 n. 10, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989). The Court agrees that the following time entries are non-billable clerical tasks: .25 attorney hours on February 9, 2011 to mail the Appeals Council notice to another attorney; .50 paralegal hours to download and print the transcript on June 23, 2011; .25 attorney hours to "[e]mail with co-counsel regarding sending her paper copy of transcript to her via Fed Ex" on June 23, 2011; and .25 paralegal hours to send Defendant’s opposition memorandum to co-counsel via email on November 7, 2011. See doc. 20-1 at PageID 131-32. Accord Karns, 2012 U.S. Dist. LEXIS 49560, at *8, 2012 WL 1185990, at *3. Therefore, $107.50 should be deducted from Plaintiffs EAJA fee award for .50 hours of attorney time and .75 hours of paralegal time.
Further, the Commissioner objects to seven time entries from August 17, 2011 to August 19, 2011 (1.0 hour of attorney time, and .50 hours of paralegal time) related to a motion for an extension of time.
Finally, the Commissioner argues that counsel should not be compensated for inefficient litigation practices — specifically pointing to counsel’s numerous entries for "review of file" and for conferring with another attorney. See doc. 21 at PageID
In sum, it is the undersigned’s recommendation that Plaintiffs EAJA attorney’s fees be reduced in total by $950.00: $107.50 for clerical tasks; $155.00 related to the motion for an extension of time; $437.50 for the “review of file” entries; and $250.00 related to consultation with another attorney. With those deductions, Plaintiff would be entitled to a reduced amount of $4,005.00 in attorney’s fees, plus $350.00 in costs, for a total of $4,355.00.
IV.
For the foregoing reasons, the Court RECOMMENDS as follows:
1. Plaintiffs motion for attorney’s fees under the Equal Access to Justice Act, (doc. 20), be GRANTED IN PART AND DENIED IN PART, and Plaintiff be AWARDED $4,355.00 ($4,005.00 in attorney’s fees and $350.00 in costs); and
. Attached hereto is a NOTICE to the parties regarding objections to this Report and Recommendation.
. An EAJA fees motion must be filed within 30 days of “final judgment.” See 28 U.S.C. § 2412(d)(1)(B). "Final judgment” occurs at the end of the 60-day period to file an appeal under Fed. R.App. P. 4(a)(1)(B). See Shalala, 509 U.S. at 302-03, 113 S.Ct. 2625.
. The Commissioner points out the following time entries: three entries on August 17, 2011 for emails regarding an extension of time (.75 attorney hours); one entry on August 17, 2011 for preparing the motion for an extension of time (.25 paralegal hours); one entry on August 18, 2011 for filing the motion (.25 paralegal hours); and one entry for reviewing the Order granting the extension on August 19, 2011 (.25 attorney hours). See doc. 21 at PagelD 145-46.
. In a recent Report and Recommendation, Argabright v. Commissioner of Social Security, No. 3:11-cv-244, 2013 WL 143363, at *3 (S.D.Ohio Jan. 11, 2013), the undersigned recommended granting Plaintiffs EAJA fees/ costs petition for 42.25 hours. However, in contrast to this case, the Commissioner there stipulated to an EAJA fees/cost award of $3,500. See id.
. Further, in light of the high number of billable hours in this case, the Court recommends that Plaintiff's request in his reply brief—to add $343.75 in attorney's fees to the $4,955.00 amount originally requested in his motion for 2.75 hours spent drafting the reply brief—be denied. See doc. 23 at PageID 157.
Reference
- Full Case Name
- Laura C. SPILLER v. COMMISSIONER OF SOCIAL SECURITY
- Cited By
- 24 cases
- Status
- Published