Farmer v. Astrue
| Decision Date | 24 November 2010 |
| Docket Number | CIVIL ACTION No. 09-2505-JWL |
| Parties | TAMARA FARMER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — District of Kansas |
Presently before the court is plaintiff Tamara Farmer's motion (doc. 24) for an award of an attorney's fee under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, in the amount of $10,212.94, 1 for 65.75 hours of attorney time at $155.33 per hour. Defendant, the Commissioner of Social Security (hereinafter the Commissioner), does not oppose an award of EAJA fees, or the rate proposed, but maintains that the number of hours billed is excessive. The EAJA requires that attorney's fees, for which reimbursement is sought, must be "reasonable," pursuant to 28 U.S.C. § 2412(d)(2)(A), and the court has a duty to make an independent evaluation of the reasonableness of counsel's bill. Hensley v. Eckerhart, 461 U.S. 424, 432-34 (1983). Upon that evaluation, the court finds that fees should be awarded in the amount of $8,348.98.
Plaintiff was denied disability benefits by an administrative law judge (ALJ) and sought, but was denied review by the Appeals Council. Plaintiff sought judicial review before this court pursuant to 42 U.S.C. § 405(g) which entitles the district court to review final decisions of the Commissioner. Plaintiff argued before the court that the ALJ erred in evaluating her cognitive disorder and in evaluating the medical opinion evidence, and that the case should be remanded for an immediate award of benefits. The court found the ALJ's error in weighing the medical source opinions dispositive of the case. It found that the opinions of twelve treating health care providers which, if accepted, require a finding of disability, could not be overcome in these circumstances by the equivocal opinions of two health care providers who merely examined Plaintiff once each. The court determined that the evidence as a whole supports but one conclusion, that Plaintiff is disabled within the meaning of the Act. It reversed the Commissioner's decision and remanded with instructions to immediately award benefits to Plaintiff.
Because Plaintiff secured a judgment reversing the Commissioner's decision and remanding for an immediate award of benefits, she submitted an application pursuant to the Equal Access to Justice Act (EAJA) 28 U.S.C. § 2412, seeking an award of an attorney's fee. Along with that application, she submitted an "itemization of time expended by Plaintiffs counsel" in prosecuting the case before this court. (doc. 24 at 2 incorporating Exhibit A). Plaintiffs itemization includes 69.85 hours of attorney time, but she only seeks reimbursement for 65.75 hours and shows 4.10 hours of attorney time which she did not include in the total. .
The Commissioner concedes that an award of an attorney's fee under the EAJA is appropriate in this case but challenges the number of hours as unreasonable. He makes several arguments to show the hours spent were unreasonable. First, the Commissioner claims that experienced attorneys typically are awarded compensation for less than forty hours, not more than sixty. He asserts that Plaintiffs request for more than sixty hours and more than $10,000.00 "appears excessive on its face." Next, the Commissioner argues that plaintiffs counsel did not allege that the issues present in this case were novel or complex and, in fact, the issues argued here, severity of impairments and weight accorded medical source opinions, are present in nearly every Social Security disability case. He points out that counsel spent more time drafting the statement of facts than the argument section of the brief. The Commissioner argues that even though the record consists of 2, 035 pages, it was unreasonable for counsel to spend twenty-five hours preparing a twenty-nine page statement of facts. He argues that counsel represented Plaintiff before the agency, that there are few handwritten notes in the record, and that experienced counsel should have been familiar with the record and better able to summarize the evidence. Last, the Commissioner notes the total bill for briefing is over $8,900.00, and cites cases in which courts in the District of Kansas have reduced the number of hours when the case is routine and counsel is experienced. The Commissioner does not, however, suggest what is a reasonable number of hours in this case.
In her reply, Plaintiff cites a case from the Northern District of Illinois in which the court found 1.6 hour per page was reasonable for writing a fifteen-page brief, and argues that 1.1 hours per page for her forty-five page brief is also reasonable. (doc. 26 at 2) (citing Dunn v. Shalala, No. 92 C 4090, 1995 WL 23116 (N.D. Ill. Jan. 19, 1995)). Plaintiff notes the "sheer volume of records" at 2, 035 pages, the ten-year span of the medical evidence, and the two administrative hearings, and argues that although counsel began representing Plaintiff after the first administrative hearing, "the depth and breadth of the record required additional time to adequately present the facts in a concise and sequential order." Id. She argues that the fact that it took less time to draft the arguments than the statement of facts reflects the experience of counsel, and the statement of facts required greater time because "each case is based on [a] unique set of facts that must be synthesized into a single understandable story." Id. at 2-3. Finally, she argues that because the case was at issue over six years, because the record was voluminous, and because it was necessary to review and discuss the opinions of many treating and examining physicians, "this case was neither simple nor routine." Id. at 3.
Eckerhart, 461 U.S. at 437. The court has a duty to reduce the hours submitted that were actually worked to hours that were reasonably expended. Id. The amount of attorney's fee to be awarded is a decision that lies within the court's discretion. Pierce v. Underwood, 487 U.S. 552, 571 (1988).
The Commissioner claims that experienced attorneys typically are awarded compensation for less than forty hours, not more than sixty, that Plaintiff's request appears excessive on its face, and that the issues argued here, severity of impairments and weight accorded medical source opinions, are present in nearly every Social Security disability case. What "experienced attorneys" are "typically awarded" in Social Security cases speaks to the issue of an attorney's fee in a particular case in only the most general of terms. However, there is merit in the Commissioner's claim that severity of impairments and weight accorded medical source opinions are issues which appear prominently in many Social Security cases. On the other hand, Plaintiff's argument that the medical record spanned ten years, and that there were numerous medical source opinions from treating and examining health care professionals which had to be synthesized, offers a reason suggesting this case was nonetheless a...
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