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Staples v. Berryhill

United States District Court, D. Maine

June 13, 2017

DONALD STAPLES, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant

          RECOMMENDED DECISION ON MOTIONS FOR EAJA ATTORNEY FEES

          John H. Rich III United States Magistrate Judge.

         The plaintiff seeks a fee award pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), of $11, 389.27 for 71.2 hours of attorney and paralegal work performed in connection with this Social Security benefits appeal. See EAJA Application for Fees and Expenses (“EAJA Motion”) (ECF No. 26) & [Fee Invoice] (“First Invoice”), Exh. A (ECF No. 26-1) thereto, at [3], as modified by Response to Opposition to EAJA Application (“EAJA Reply”) (ECF No. 28) at 4 n.4 (withdrawing request as to 1.5 hours of paralegal time). He seeks a further EAJA fee award of $981.18 for 5.1 additional hours of attorney time expended in preparing his EAJA fee reply brief. See Supplemental EAJA Application for Fees and Expenses (“Suppl. EAJA Motion”) (ECF No. 29) at [1].

         The commissioner objects that the plaintiff seeks, in the EAJA Motion, to recover an unreasonable number of hours of work and that the Supplemental EAJA Motion is premature. See Defendant's Opposition to Plaintiff's EAJA Application for Fees and Expenses (“EAJA Response”) (ECF No. 27) at 1; Defendant's Response to Plaintiff's Supplemental EAJA Application for Fees and Expenses (“Suppl. EAJA Response”) (ECF No. 30) at 1. For the reasons that follow, I recommend that the court grant the EAJA Motion in part, reducing the award to $8, 681.63 (Eight Thousand Six Hundred Eighty-One Dollars and Sixty-Three Cents), and grant the Supplemental EAJA Motion, awarding the requested $981.18 (Nine Hundred Eighty-One Dollars and Eighteen Cents), resulting in a total award of $9, 662.81 (Nine Thousand Six Hundred Sixty-Two Dollars and Eighty-One Cents).

         I. Applicable Legal Standard

         The EAJA provides, in relevant part:

[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). The EAJA allows fee reimbursement to a prevailing party only for “reasonable fees and expenses of attorneys[.]” Id. § 2412(b). “[A] prevailing party that satisfies EAJA's other requirements may recover its paralegal fees from the Government at prevailing market rates.” Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 590 (2008). “The plaintiffs bear the burden of establishing the reasonableness of the rates and hours submitted in their application for fees.” Mason v. Maine Dep't of Corr., 387 F.Supp.2d 57, 60 (D. Me. 2005).

         The commissioner concedes that the plaintiff was the prevailing party within the meaning of the EAJA and does not contend that her position was substantially justified. See EAJA Response at 1-2. She agrees that some fee award under the EAJA is appropriate. See id. at 2.

         II. Procedural Background

         The procedural background of this case is out of the ordinary. The plaintiff appealed to this court from the commissioner's denial of his application for Social Security Disability benefits. See Plaintiff's Itemized Statement of Errors (“Statement of Errors”) (ECF No. 12) at 1-4. The decision from which he appealed was the third issued on his claim for benefits, filed on February 11, 2008. See id. at 1. In July 2010, this court vacated a 2009 decision denying the claim and remanded the case for further proceedings, resulting in a second decision that the Appeals Council vacated, remanding the case for further proceedings in June 2013. See id. An administrative law judge (“ALJ”) then issued the decision at issue in this appeal, with respect to which the Appeals Council denied review. See id. In his 20-page statement of errors, the plaintiff contended that the ALJ erred in seven discrete respects in finding no severe impairment at Step 2 and three discrete respects in concluding, in the alternative, that he was not disabled at Step 5. See id. at 4-20.

         I recommended remand on the basis that this court's 2010 order vacating the 2009 decision and remanding the case for further proceedings did not permit the reopening of the question of whether the plaintiff had a severe impairment at Step 2, which had been decided favorably to him in the 2009 decision. See Report and Recommended Decision (“Recommended Decision”) (ECF No. 19) at 3-5. For the benefit of the parties on remand, I considered the plaintiff's Step 5 points, concluding that one of them - faulting the ALJ for failing to explain how he arrived at the plaintiff's residual functional capacity (“RFC”) - also would necessitate remand. See id. at 5-10.

         The commissioner filed a nine-page objection to the recommended decision, conceding the Step 2 error but arguing that it was harmless because the ALJ made an alternative Step 5 decision that she contended should have been upheld or found, at most, to contain harmless error. See Defendant's Objection to the Report and Recommended Decision and Request for Oral Argument (“Rec. Dec. Obj.”) (ECF No. 20) at 2-8. The plaintiff filed a 20-page response. See Plaintiff's Response to Objection to the Report and Recommended Decision (“Obj. Resp.”) (ECF No. 21). After hearing oral argument, see ECF No. 25, Judge Hornby affirmed my recommended decision, see ECF No. 23. The fee applications followed.

         III. Discussion

         A. EAJA Motion

         The commissioner objects to the full fee award sought in this case because she contends that an unreasonable number of hours were spent preparing (i) the statement of errors (34.35 hours, consisting of 22.75 hours of paralegal time and 11.6 hours of attorney time for the periods from December 17, 2015, through December 21, 2015, and January 3, 2016, through January 9, 2016) and (ii) the plaintiff's response to the objection to the recommended decision (22.55 hours of attorney time from September 2, 2016, through September 8, 2016). See EAJA Response at 3-4. She does not contest the reasonableness of the balance of the paralegal time (1.3 hours) or attorney time (14.5 hours). See id. at 3.

         She seeks a reduction to 23 hours (15, paralegal; eight, attorney) for the preparation of the statement of errors and 5.5 attorney hours for the preparation of the response to the objection to the recommended decision, which, when combined with the items that she does not contest, would result in a total award of $6, 853.92 for 44.3 hours of work in this case (28 hours of attorney time at $192.39 per hour and 16.3 hours of paralegal time at $90.00 per hour). See id. at 4-7.[2]

         In response, as noted above, the plaintiff withdraws his request for compensation for 1.5 hours of paralegal time logged on December 18, 2015, on the issue of res judicata, explaining that the paralegal was confused and did not understand that the ALJ had chosen not to consider that an issue in the plaintiff's case. See EAJA Reply at 4 n.4. However, he continues to press for ...


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