United States District Court, E.D. Oklahoma
STEVEN B. BEARS, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER AWARDING ATTORNEYS' FEES TO THE
PLAINTIFF UNDER THE EAJA
P. SHREDER UNITED STATES MAGISTRATE JUDGE.
Plaintiff was the prevailing party in this appeal of the
Commissioner of the Social Security Administration's
decision denying benefits under the Social Security Act. He
seeks attorneys' fees and costs in the amount of $5,
578.90 under the Equal Access to Justice Act (the
“EAJA”), 28 U.S.C. § 2412. See
Plaintiff's Application for an Award of Attorneys'
Fees Under the Equal Access to Justice Act [Docket No. 22].
The Commissioner objects and urges the Court to deny the
request or award a lesser amount. For the reasons set forth
below, the Court concludes that the Plaintiff should be
awarded a reduced amount of attorney's fees and costs
under the EAJA as the prevailing party herein.
Commissioner's response to Plaintiff's request for
fees under the EAJA challenges the hours billed by
Plaintiff's counsel and argues that any attorney's
fees awarded under the EAJA should be reduced from the amount
requested by the Plaintiff. On appeal, the Plaintiff asserted
that the ALJ improperly erred in his assessment of the
Plaintiff's mental impairments, and further failed to
account for his hand and elbow impairments.
Commissioner contends that individual amounts billed by the
Plaintiff's attorney were unnecessary and excessive and
that the amount of any award under the EAJA should be reduced
accordingly. The Court agrees, and finds that the amount of
attorneys' fees and costs sought by the Plaintiff should
be reduced to $4, 728.50. Plaintiff's counsel has
submitted billing records indicating that he has expended
28.9 hours on the Plaintiff's appeal before this Court.
The Commissioner argues that this amount is not
reasonable. See, e. g., 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.' . . . 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[.]”). Specifically,
the Commissioner takes issue with counsel's billing
records for 26.5 hours in 2016 solely devoted to the opening
brief. The Commissioner noted that the administrative record
was of average length, and also pointed out that five pages
of the fifteen-page Opening Brief were lengthy copied
excerpts from the administrative transcript. Additionally,
the Commissioner asserts that the substantive issues briefed
were not complex, and requests that the total hours for
preparing the opening brief should be reduced from 26.5, for
a total hourly award of 20.0 hours. The Court agrees that a
reduction is in order.
Circuit, typical social security appeals require, on average,
twenty to forty total hours of attorney time, and the total
time reflected here, 28.9 hours, is not out of that range.
See, e. g., Nave v. Barnhart, 2003 WL
22300178, at *2 (D. Kan. Oct. 7, 2003) (“[T]he typical
number of hours claimed in EAJA applications in
‘straightforward' disability cases is between
thirty and forty[;]” collecting cases). However, the
Court also finds nothing in this case to differentiate it
from the usual work required in the average case. The
Plaintiff raised two common errors on appeal, as described
above. Nevertheless, it is still up to the Court to make a
determination as to the reasonableness of the total fee
request, specifically as to “whether the hours spent
representing the Plaintiff were ‘reasonably
expended.'” Truelove v. Colvin, 2014 WL
36750, at *2 (D. Colo. Jan. 6, 2014), citing Blum v.
Stevenson, 465 U.S. 886, 901 (1984) and
Hensley, 461 U.S. at 437.
review of the arguments by the parties, as well as a review
of the hours expended in light of the subject matter and
difficulty of the Plaintiff's case, the Court therefore
finds that 24.5 hours is a reasonable award for the work
performed in this case, and that it shall be compensated at
the hourly rate of $193, which is the 2016 hourly rate and
the year counsel performed the bulk of the work in this case
(billing 28.5 hours in 2016, out of the total 28.9 hours
reported). See Mares v. Credit Bureau of Raton, 801
F.2d 1197, 1202 (10th Cir. 1986) (“There is no
requirement, either in this court or elsewhere, that district
courts identify and justify each disallowed hour.”).
This results in a fee award of $4, 728.50.
IT IS ORDERED that the Plaintiff's Application for an
Award of Attorneys' Fees Under the Equal Access to
Justice Act [Docket No. 22] is hereby GRANTED in part and
that the Government is hereby ordered to pay attorneys'
fees in the amount of $4, 728.50 to the Plaintiff as the
Prevailing party herein. IT IS FURTHER ORDERED that if the
Plaintiffs attorney is subsequently awarded any fees pursuant
to 42 U.S.C. § 406(b)(1), said attorney shall refund the
smaller amount of such fees to the Plaintiff pursuant to
Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.
IS SO ORDERED.
 The hourly rates sought by the
Plaintiff are in line with those prescribed by the
Commissioner, i. e., $193/hour in 2016, and
$196/hour in 2017, and there is no contention by the
Commissioner that they are unreasonable in this case.
See Docket No. 22, Ex. 1; Hospice Center of
Southeastern Oklahoma, Inc. v. Sebelius, 2013 WL
2007315, at *1 n.1 (E.D. Okla. May 13, 2013) (“The
court takes judicial notice that the office of General
Counsel, Region VI of the ...