United States District Court, W.D. North Carolina, Statesville Division
LEO O. SINGER, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Richard L. Voorhees United States District Judge.
THE COURT is Plaintiff's Motion for
Attorney's Fees Under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d)(1)(A). (Doc.
28). The Commissioner responded (Doc. 31), to which Plaintiff
replied (Doc. 32). The Commissioner raised two independent
arguments in its opposition to Plaintiff's Motion for
Attorney's Fees. (Doc. 31). First, the Commissioner
contends that its position was substantially justified. (Doc.
31 at 2). Second, and alternatively, the Commissioner
contends that even if its position was not substantially
justified, the fees requested in Plaintiff's Motion are
excessive. (Doc. 31 at 6).
parties do not dispute the fact that Plaintiff is the
prevailing party. When the court remands under Sentence Four
of 42 U.S.C. § 405(g), the plaintiff is the prevailing
party. See Hensley v. Eckerhart, 461 U.S. 424, 433
(1983). Granting a motion for attorney's fees and costs
to the “prevailing party” under the EAJA is
proper “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. §
Commissioner has the burden of showing that its position was
substantially justified. United States v. 515 Granby,
LLC, 736 F.3d 309, 314 (4th Cir.2013). Substantial
justification does not require the position to be correct but
may be substantially justified if a reasonable person could
think it correct. See Pierce v. Underwood, 487 U.S.
552, 566 n.2 (1988). “The government can defeat a claim
for attorney's fees by showing that its position had a
reasonable basis in both fact and law.” Crawford v.
Sullivan, 935 F.2d 655, 656 (4th Cir.1991).
Government will avoid paying fees as long as ‘a
reasonable person could [have thought]' that its
litigation position was ‘correct.'” Meyer
v. Colvin, 754 F.3d 251, 255 (4th Cir. 2014) (alteration
in original) (quoting Pierce, 487 U.S. at 566 n. 2).
While a Magistrate's recommendation is a permissible
factor for consideration in determining the reasonableness of
the Government's litigation position, the recommendation
is not determinative. Holcomb v. Comm'r of Soc. Sec.
Admin., No. 8:13-cv-02066-JMC, 2016 WL 6068022, at *2
(D.S.C. Oct. 17, 2016) (noting that a recommendation for
affirmance is a factor weighing in the Government's
favor) (citing McKoy v. Colvin, No.
4:12-cv-1663-CMC-TER, 2013 WL 6780585, at *3 (D.S.C. Dec. 19,
2013). But see United States v. Paisley, 957 F.2d
1161, 1167 (4th Cir. 1992) (holding that the decision of an
intermediate judge is not determinative of a finding of
the Honorable David C. Keesler's Memorandum and
Recommendation (the “M&R”) (Doc. 22) de
novo pursuant to 28 U.S.C. 636(b)(1) (2012), this Court
determined that the Administrative Law Judge
(“ALJ”) failed to explain any connection between
the Plaintiff's headaches and the impact of those
headaches on the Plaintiff's residual functional capacity
(“RFC”). (Doc. 26, at 3). Because the ALJ
determined that Plaintiff's headaches constituted a
“severe impairment” (Doc. 26, at 2), the ALJ was
required to do a function-by-function analysis to determine
what, if any, limitations this impairment created with
respect to the Plaintiff's RFC. See Mascio v.
Colvin, 780 F.3d 632, 635-636 (4th Cir. 2015); SSR 96-7p
(requiring “the adjudicator . . . to make a finding
about the credibility of the individual's statements
about the symptoms(s) and its functional
effects” following the determination that an
impairment exists) (emphasis added). The ALJ's failure to
conduct this analysis constituted an error of law that must
necessarily outweigh any weight given to the M&R. Thus,
the Government's litigation was not substantially
justified, and the Plaintiff is entitled to reasonable
attorney's fees under the EAJA.
Plaintiff has requested attorney's fees of $8, 630.44
based on 45.5 hours of work at $189.68 per hour. (Doc. 28, at
2-4). The Government has requested that, if this Court
determines that its litigation position was not substantially
justified, the award of attorney's fees be reduced by
“at least five hours.” (Doc. 31, at 6-7). The
experience of this Court has shown that the prosecution of a
Social Security claim typically requires twenty-to-forty
hours of work, and only exceeds that amount of time in
atypical cases. See, e.g., Gibson v.
Colvin, 2015 U.S. Dist. LEXIS 20676, at *3 (E.D. N.C.
2015) (46.3 hours compensable where administrative record
exceeded 1, 000 pages); Brandon v. Colvin, 2015 U.S.
Dist. LEXIS 20675, at * 4 (E.D. N.C. 2015) (23.5 hours
compensable); Harlan v. Colvin, 2014 U.S. Dist.
LEXIS 56492, at *6 (W.D. N.C. 2014) (thirty-two hours
compensable); Gibby v. Astrue, 2012 U.S. Dist. LEXIS
108177, at *14 (W.D. N.C. 2012) (recognizing twenty to forty
hour convention); Dixon v. Astrue, 2008 U.S. Dist.
LEXIS 9903, at *12 (E.D. N.C. 2008) (25.23 hours of attorney
time compensable). Accord Patterson v. Apfel, 99
F.Supp.2d 1212, 1214 n.2 (C.D. Cal. 2000) (survey of social
security disability cases shows an average range of twenty to
administrative record in this case does not exceed 1, 000
pages, however, it is greater than 800 pages. (Doc. 8, 8-1
through 8-10). Plaintiff's counsel, however, has failed
to include detailed descriptors for a significant amount of
the work performed in his Affidavit in Support of
Plaintiff's Motion for Attorney's Fees (Doc. 28-1),
which makes it difficult for this Court to determine if the
requested fees in excess of forty hours are reasonable. For
example, Plaintiff's counsel reported 4.2 hours for
“begin review of record, ” 2.6 hours for
“continued review of record and research, ” 7.5
hours for “continued drafting memorandum, research,
” and so on. (Doc. 28-1, at 3). By broadly categorizing
significant portions of billable time with the supplement
“research” without any further descriptors,
Plaintiff's counsel has made it difficult to determine if
he expended time in this action reasonably.
Court will not, however, micromanage counsel's time by
engaging in a line-by-line review to determine whether the
fee request is reasonable. Yates v. Colvin, 2015
U.S. Dist. LEXIS 33460, at *5 (E.D. N.C. 2015); Quade ex
rel. Quade v. Barnhart, 570 F.Supp.2d 1164, 1167-1168
(D. Ariz. 2008). Plaintiff's counsel obtained a favorable
outcome for his client, did so in a case with an
administrative record exceeding 800 pages, and is, according
to a sworn affidavit, one of the few attorneys-if not the
only attorney-in the Boone area that provides representation
in the federal court system to claimants in Social Security
litigation from nine counties in the northwest corner of
North Carolina. These factors do guide this Court to exercise
some favorable discretion toward Plaintiff. Therefore, while
this Court, in its discretion, will reduce the award to
Plaintiff in order to bring it more in line with the
twenty-to-forty hour convention, it will reduce the amount by
the minimum five hours requested by the Government. Thus,
Plaintiff is entitled to attorney's fees pursuant to the
EAJA for 40.5 hours of work at $189.68 per hour for a total
of $7, 682.04.
to the United States Supreme Court's ruling in Astrue
v. Ratliff, 560 U.S. 586, 130 S.Ct. 1251 (2010), these
attorney's fees are payable to Plaintiff as the
prevailing party and are subject to offset through the
Treasury Department's Offset Program to satisfy any
pre-existing debt Plaintiff may owe to the government. If,
subsequent to the entry of this Order, the Commissioner of
Social Security (“Commissioner”) determines that
Plaintiff owes no debt to the government that would subject
this award of attorney's fees to offset, the Commissioner
may honor Plaintiffs March 2014 signed assignment of EAJA
fees (Doc. 28-2), providing for payment of the subject fees
to Plaintiffs counsel, rather than to Plaintiff. If, however,
Plaintiff is discovered to owe the government any debt
subject to offset, the Commissioner shall pay any remaining
attorney's fee to Plaintiffs counsel in accordance with
the above agreement.
IS, THEREFORE, ORDERED THAT Plaintiffs Motion for
Attorney's Fees under the EAJA (Doc. 28) is
Plaintiffs Motion is GRANTED to the extent he seeks his
reasonable attorney's fees and costs under the Equal
Access to Justice Act, 28 U.S.C. § 2412(d);
Plaintiffs Motion is DENIED to the extent his claimed
attorney's fees are unreasonable, and to cure the
unreasonableness of Plaintiff s claim, the Court in its
discretion reduces the claim by five hours to a total of 40.5
Commissioner shall pay to Plaintiff reasonable attorney's