Warlop v. Social Security Administration, Commissioner of, No. 2:2019cv02615 - Document 24 (D. Kan. 2021)
Court Description: MEMORANDUM AND ORDER granting in part and denying in part 18 Motion for Attorney Fees. See order for details. Signed by U.S. District Senior Judge Sam A. Crow on 1/6/21. (msb)
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2:19-cv-02615-SAC Warlop v. Social SecurityCase Administration, Commissioner ofDocument 24 Filed 01/06/21 Page 1 of 8 Doc. 24 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS, J.B.W.,1 Plaint iff, Vs. No. 19- 2615- SAC ANDREW M. SAUL, Com m issioner of Social Securit y, Defendant . MEMORANDUM AND ORDER On July 31, 2020, t he court ent ered a m em orandum and order grant ing in part t he m ot ion t o rem and ( ECF# 13) filed by t he defendant Com m issioner of Social Securit y ( " Com m issioner" ) . ECF# 16. I nst ead of rem anding for m ore adm inist rat ive proceedings on a disabilit y det erm inat ion, t he court reversed and rem anded for a calculat ion and award of benefit s. I d. Judgm ent was ent ered pursuant t o sent ence four of 42 U.S.C. § 405( g) reversing t he Com m issioner’s decision and rem anding t his case for a calculat ion and award. ECF# 17. Counsel for t he claim ant J.B.W. filed on Oct ober 12, 2020, a m ot ion for at t orney fees under t he EAJA along wit h counsel’s affidavit and exhibit s. ECF# # 18 and 19. The m ot ion asked 1 The use of init ials here is pursuant t o t he court ’s effort s t o preserve privacy int erest s. Even t hough t he hist ory of t his lit igat ion t em pers t he privacy int erest s, t he court will follow it s pract ice. 1 Dockets.Justia.com Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 2 of 8 for fees in t he am ount of $9,702 ( 49 hours at $198 per hour) and cost s in t he am ount of $400. On Novem ber 11, 2020, claim ant ’s counsel filed a st at em ent of consult at ion indicat ing t he part ies had not reached an agreem ent on t he fee request . ECF# 20. Counsel filed t he sam e day a m em orandum in support of her EAJA at t orney fees m ot ion. ECF# 21. The Com m issioner agrees t hat “ [ t ] here is no disput e t hat Plaint iff’s counsel deserves com pensat ion for Plaint iff’s vict ory.” ECF# 22, p. 1. The Com m issioner does disput e t he reasonableness of counsel’s request ed fee am ount as excessive and duplicat ive based on t he following. JBW first appealed his applicat ion of benefit s in 2015, and t he case was reversed and rem anded wit h benefit s. The claim ant ’s counsel received an EAJA fee award of $6,400 which included 15.5 hours for reviewing t he adm inist rat ive record of 1,018 pages and draft ing t he sum m ary of t est im ony and m edical evidence t hat t ot aled 20 pages of t he 2015 brief. For t he 2019 appeal, t he adm inist rat ive record expanded t o 1,538 pages wit h t he relevant addit ions being t he lat est ALJ decision, t he recent hearing t ranscript s, and new m edical records. Aft er cut t ing and past ing t he st at em ent of fact s from her 2015 brief, counsel t hen sum m arized t he addit ional relevant fact s in t en new pages of her 2020 brief. For her t im e reviewing t he record and draft ing t he st at em ent of fact s and t est im ony in t his lat est brief, counsel’s billing ledger shows over 20 hours. The Com m issioner argues t hat counsel provides “ no 2 Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 3 of 8 explanat ion for why it t ook 15.5 hours t o review a 1,018- page t ranscript and writ e 18 pages in 2015, but 20.75 hours t o review 152 pages and writ e 10 pages in 2020.” ECF# 22, p. 4. The Com m issioner asks t he court t o reduce counsel’s fee award t o $5,000 as she is not ent it led t o be paid t wice for t he sam e work. I n reply, counsel explains her billing ledger t o reflect t he following: 7.75 hours for preparing t he int roduct ion and sum m arizing 122 pages of new t est im ony and 1.25 hours for sum m arizing new m edical evidence which t ot als 9 hours for draft ing 13 new pages t hat sum m arizes 157 pages of new evidence. Counsel also billed 9.75 hours reviewing t he ent ire record t o refresh her fam iliarit y wit h t he fact s of t he case while considering t he relevant issues on appeal and evaluat ing t hem wit hin t he relevant cont ext of t he m ost recent m edical expert t est im ony. Counsel denies billing any t im e for t ransferring sect ions of her 2015 brief t o her 2020 brief. Counsel crit icizes t he Com m issioner’s suggest ed reduct ion t o $5,000 as not linked t o specific billings in disput e. Counsel point s out t hat lit igat ing social securit y appeals is not easier aft er an earlier reversal and rem and, as t he record now m ust be looked at anew against recent m edical expert t est im ony t hat is unfavorable t o t he plaint iff. Counsel believes it reasonable t o bill “ 49 hours t o prepare a brief of which 33 pages were newly sum m arized evidence and legal argum ent in a 1,538- page record.” ECF# 23, p. 4. Counsel also 3 Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 4 of 8 supplem ent s her fee request for 2.75 hours in preparing t he st at em ent of consult at ion, t he m em orandum in support of fee m ot ion, and t he reply. Sust ained by t he proceedings t o dat e and consist ent wit h t he part ies’ concessions, t he court finds t hat t he plaint iff is t he prevailing part y pursuant t o t he sent ence four reversal and rem and for a calculat ion and award of benefit s and t hat t he Com m issioner has not shown it s posit ion t o have been subst ant ially j ust ified. EAJA fee request s are under t he court ’s dut y t o review for reasonableness. See Sieber v. Berryhill, No. 17- 2630- JWL 2018 WL 3389888, at * 2 ( D. Kan. Jul. 12, 2018) ( cit ing Hensley v. Eckerhart , 461 U.S. 424, 433- 34 ( 1983) ) . I n seeking fees, t he plaint iff bears t he burden of showing it s request ed hourly rat e and t he request ed num ber of hours are reasonable under t he circum st ances. I d. The Com m issioner does not disput e t hat an hourly rat e of $198 correct ly reflect s t he m axim um fee wit h t he appropriat e cost of living adj ust m ent . The only disput e here is wit h t he reasonableness of t he hours request ed by t he plaint iff’s at t orney. The Tent h Circuit in Robinson v. Cit y of Edm ond, 160 F.3d 1275, 1281 ( 10t h Cir. 1998) , has sum m arized t he court ’s relevant evaluat ion in t his way: “ The prevailing part y m ust m ake a ‘good- fait h effort t o exclude from a fee request hours t hat are excessive, redundant , or ot herwise unnecessary.’” Jane L. [ v. Bangert er] , 61 F.3d [ 1505] at 1510 [ ( 10t h Cir. 1995) ] ( quot ing Hensley, 461 U.S. at 434, 103 S.Ct . 1933) . A dist rict court should approach t his reasonableness inquiry “ m uch as a 4 Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 5 of 8 senior part ner in a privat e law firm would review t he report s of subordinat e at t orneys when billing client s....” Ram os v. Lam m , 713 F.2d 546, 555 ( 10t h Cir.1983) . However, “ [ t ] he record ought t o assure us t hat t he dist rict court did not ‘eyeball’ t he fee request and cut it down by an arbit rary percent age....” People Who Care v. Rockford Bd. of Educ., Sch. Dist . No. 205, 90 F.3d 1307, 1314 ( 7t h Cir.1996) ( quot at ions om it t ed) . The Ram os court suggest ed t hat am ong t he fact ors t o be considered were ( 1) whet her t he t asks being billed “ would norm ally be billed t o a paying client ,” ( 2) t he num ber of hours spent on each t ask, ( 3) “ t he com plexit y of t he case,” ( 4) “ t he num ber of reasonable st rat egies pursued,” ( 5) “ t he responses necessit at ed by t he m aneuvering of t he ot her side,” and ( 6) “ pot ent ial duplicat ion of services” by m ult iple lawyers. I d. at 554. As part of t his reasonableness det erm inat ion, a dist rict court m ay discount request ed at t orney hours if t he at t orney fails t o keep “ m et iculous, cont em poraneous t im e records” t hat reveal “ all hours for which com pensat ion is request ed and how t hose hours were allot t ed t o specific t asks.” I d. at 553. I n t his analysis, we ask what hours a reasonable at t orney would have incurred and billed in t he m arket place under sim ilar circum st ances. “ I n ot her words t he obj ect is t o sim ulat e t he m arket where a direct m arket det erm inat ion is infeasible.” St einlauf v. Cont inent al I llinois Corp., 962 F.2d 566, 572 ( 7t h Cir.1992) . As generally st at ed in t he past , EAJA applicat ions in rout ine social securit y disabilit y cases are t ypically bet ween 30 and 40 hours, and hours have been reduced from applicat ions exceeding t his range in rout ine cases. See Gat ewood v. Colvin, No. 13- 1339- SAC, 2016 WL 8670056, at * 1 ( D. Kan. Oct . 14, 2016) . Depending on t he num ber and com plexit y of t he issues raised and argued in t he case, t his court generally approves t he reasonableness of counsel expending bet ween 20 t o 30 hours on t he init ial brief in a rout ine case. See, e.g., Gat ewood, 2016 WL 8670056, at * 2 ( 22.95 5 Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 6 of 8 hours reasonable) ; Ziegler v. Colvin, No. 15- 1097- SAC, 2016 WL 8670055, at * 2 ( court reduced 32.45 hours request t o 28 hours for init ial brief) ; Tat e v. Colvin, No. 15- 4870- SAC, No. 2016 WL 7373896, at * 2 ( Dec. 20, 2016) ( court reduced request ed 34.5 hours t o 30.5 hours) ; Hinck v. Colvin, No. 131389- JWL, 2015 WL 6473562, at * 3 ( D. Kan. Oct . 27, 2015) ( request of 38.95 hours for init ial brief reduced by 10 hours) ; Sigm on v. Saul, No. 184049- JWL, 2019 WL 5067210, at * 3 ( D. Kan. Oct . 9, 2019) ( 30 hours reasonable) . I n t he 2015 case, working wit h a record of j ust over 1,000 pages, t he plaint iff’s counsel billed 23 hours for her init ial brief of 39 pages. ECF# 22- 2, p. 2. I n t he current case, working wit h sam e record and an addit ional 157 pages of new evidence, t he plaint iff’s counsel billed 39.5 hours for her init ial brief of 55 pages. ECF# 19- 1. The plaint iff counsel’s explanat ion for t his disparit y in billed hours bet ween t he t wo briefs is not persuasive. Bot h briefs advance essent ially t he sam e t hree issues. The court appreciat es t he second appeal required discussing t hese issues wit hin t he fram ework of a different ALJ decision and evaluat ion of t he evidence as w ell as wit hin t he cont ext of recent t est im ony and m edical evidence. I n com paring t he t wo briefs, t he court finds t he plaint iff’s counsel t o have cut and past ed bet ween 18 t o 20 pages of t he 2015 brief int o t he 2020 brief. The plaint iff’s counsel sum m arizes t he addit ional record in t he second appeal as t he new ALJ 6 Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 7 of 8 decision, 35 pages of m edical evidence and 122 pages of new t est im ony. ECF# 21, p. 4. The recent ALJ decision, t est im ony and m edical evidence, however, do not j ust ify all addit ional hours request ed for preparing t he 2020 brief. The plaint iff’s counsel explains her ledger as showing she spent 7.75 hours preparing t he int roduct ion and sum m arizing 122 pages of new t est im ony and 1.25 hours sum m arizing t he 35 pages of m edical evidence for a t ot al of 9 hours t o draft 13 pages in her brief. The kind of t est im ony and evidence sum m arized here was not involved or com plex. The court reduces t he request by t wo hours. The plaint iff’s counsel next explains t hat she spent 9.75 hours reviewing t he ent ire record in order t o consider t he issues in t he cont ext of t he m ost recent m edical evidence and expert t est im ony. The court finds t hese hours excessive as t he plaint iff’s counsel had already reviewed and sum m arized t his record in 2015 and did not change a word of t hat sum m ary for purposes of her 2020 brief. This prior work should have assist ed counsel in finding and reviewing only t hose part s of t he record m ost relevant t o her 2020 considerat ions. Thus, t he court reduces t his request by six hours. Finally, counsel bills 13.5 hours for draft ing her t hree legal argum ent s and 6 m ore hours for edit ing. Neit her t he com plexit y of t he argum ent s nor t he lengt h of t he brief warrant t his request ed hours. The court reduces t he request by anot her t wo hours. I n conclusion, t he court 7 Case 2:19-cv-02615-SAC Document 24 Filed 01/06/21 Page 8 of 8 finds t hat 39.5 hours for t he init ial brief is excessive and reduces t hose hours by a t ot al of t en as explained above. Such a t ot al is m ore consist ent wit h counsel’s billing in t he first appeal while t aking int o account counsel’s unique challenges wit h t his second appeal. The court also finds t hat counsel’s request for 2.75 hours t o defend t his fee request is reasonable. Following it s review of t he it em izat ions and for t he reasons discussed above, t he court finds t hat a reasonable am ount of t im e expended before t his court is 41.9 hours ( 49.15 - 10 + 2.75) . At an hourly rat e of $198.00, t he court finds t hat a t ot al fee award of $8,296.20 is reasonable. The Com m issioner did not oppose plaint iff’s request for reim bursem ent of t he filing fee; t herefore, it will be grant ed as uncont est ed. I T I S THEREFORE ORDERED t hat t he plaint iff’s m ot ion for EAJA fees ( ECF# 18) is grant ed in part and denied in part , and t he Com m issioner is ordered t o pay at t orney fees in t he am ount of $8,296.20; I T I S FURTHER ORDERED t hat plaint iff’s request for cost s for reim bursem ent of filing fee in t he am ount of $400.00. is grant ed, and t he Com m issioner shall pay t hese cost s from t he Judgm ent Fund adm inist ered by t he Unit ed St at es Treasury Depart m ent . Dat ed t his _6t h_ day of January, 2021, Topeka, Kansas. ____/ s Sam A. Crow______________________ Sam A. Crow, U.S. Dist rict Senior Judge 8
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