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Edwards v. Saul

United States District Court, N.D. Florida, Tallahassee Division

September 24, 2019

KRISTY EDWARDS, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE

         As the prevailing party in this case, ECF Nos. 17-19, Plaintiff filed a motion for attorney's fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d).[1] ECF No. 20. Plaintiff's attorney requests compensation for 44.60 hours for work performed for a total of $9, 088.91 and costs of $400.00.[2] Id. The motion is accompanied by several documents including a brief, EF No. 20-1, fee contract, ECF No. 20-2, time records, ECF No. 20-3, consumer price index, ECF No. 20-4, and several affidavits, ECF Nos. 20-5-7.

         On September 20, 2019, the Commissioner filed a response opposing the motion in part. ECF No. 21. The Commissioner does not challenge Plaintiff's assertion that she was the prevailing party, the timeliness of her Complaint, her position regarding substantial justification, or the hourly rates requested. Id. at 4. The Commissioner objects based on the number of hours Plaintiff's attorney claims as reasonable. Id. at 4-5. Specifically, the Commissioner “objects to Plaintiff's request for 6.0 hours on July 20, 2018, for Plaintiff's review of file to determine merit for appeal and drafting and sending memo to Chuck (Doc. 20-3).” Id. at 5; see ECF No. 20-3 at 1 (time sheet and EAJA calculations). The Commissioner further notes

[t]he administrative record comprises only 769 pages with about 450 pages of medical records (Doc. 11). As outlined in his fee petition, Plaintiff's attorney requests compensation for 36.0 hours for preparation of the initial brief (Doc. 20-3). However, the two issues in this case, as raised in Plaintiff's initial brief, were routine: whether the ALJ properly evaluated medical opinion evidence and Plaintiff's obesity (Doc. 15). Although Plaintiff's initial brief was approximately thirty pages long, only eighteen pages were spent on the two substantive issues (Doc. 15 at 11-29).

Id. at 5. In other words, the Commissioner requests this Court to reduce the hours claimed by Plaintiff when determining whether the case should be appealed from six to three hours or by $606.96 (3 x $202.32) and to reduce the amount claimed for writing the brief by ten hours from 36 hours to no more than 26 hours, i.e., time spent from March 6, 2019, to March 14, 2019, at $204.08 per hour or by $2, 040.80, for a total reduction of $2, 647.76. ECF No. 20-3 at 1, 3. Although a specific amount is not stated, according to the Commissioner's hourly proposed reduction, the final attorney's fees amount should be approximately $6, 441.87 ($9, 088.91 - $2, 647.04) based on a reduction of 13 hours. See ECF No. 20-3 at 3 and supra at n.2. The total attorney time would be reduced from 44.60 to 31.60.

         In this district, Social Security cases involving review of a Commissioner's decision to deny benefits typically requires 25 to 30 hours to complete. See, e.g., Jackson v. Astrue, No. 3:09cv218/MCR/MD, 2010 U.S. Dist. LEXIS 57613, at *5 (N.D. Fla. May 11, 2010), adopted, 2010 U.S. Dist. LEXIS 51612 (N.D. Fla. June 10, 2010);[3] see also Seamon v. Astrue, No. 03:10-cv-06421-HU, 2012 U.S. Dist. LEXIS 148584, at *4 (D. Or. Sept. 18, 2012) (range of 20 to 40 hours).

         The hourly rates are reasonable when adjusted for inflation. The total time for which compensation is sought is 44.60 hours and at the upper end. ECF No. 20. Rather than reducing the hours by thirteen as sought by the Commissioner, given the nature of the issues raised by current counsel, [4] the smaller size of the record when compared to other social security disability records, and the usual attorney time needed to complete the process at the district court level, the attorney time should be reduced by five hours rather than 13 hours, i.e., reduced two hours for the time spent reviewing the record for appeal and three hours for the initial brief or by $1, 016.88 (2 x $202.32; 3 x $204.08), for a total of 39.60 hours after reducing the hours from 44.60. See supra at n.2 re hourly rates.

         In accordance with Astrue v. Ratliff, 130 S.Ct. 2521, 2524 (2010), the EAJA fee should be made payable to Plaintiff, not to Plaintiff's attorney. Since the fee was assigned to Plaintiff's attorney, payment of the fee to Plaintiff's attorney is authorized so long as Plaintiff has no debt to the United States; and any such debt will be offset before payment.

         Accordingly, it is respectfully RECOMMENDED that Plaintiff's motion for attorney's fees, ECF No. 20, be GRANTED in part and Plaintiff awarded attorney's fees in the amount of $8, 072.03 ($9, 088.91 -$1, 016.88) as a reasonable EAJA attorney's fee and costs of $400.00. The Commissioner should be afforded, however, the opportunity to offset from this amount any debt owed by the Plaintiff to the United States that may be identified by the Department of Treasury and any ultimate distribution shall be made in accordance with Astrue v. Ratliff.

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Notes:

[1] In Shalala v. Schaefer, 509 U.S. 292 (1993), the Supreme Court held that a social security plaintiff who obtained a remand reversing the Commissioner's decision under sentence four of 42 U.S.C. § 405(g) was the “prevailing party, ” and as such was entitled to attorney's fees and expenses under the EAJA.

[2] The hourly rate for work performed in 2018, 7.60 hours, is $202.32 (although one hour is claimed at $202.66), and 37 hours in 2019 at $204.08, for a total of 44.60 hours. ECF No. 20-3 at 3.

[3] The Court in Jackson noted that some cases may exceed those parameters. 2010 U.S. Dist. LEXIS 57613, at *5 (N.D. ...


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