United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
Mitchell has filed a petition for attorney's fees
pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, in the amount of
$9, 520.45, plus $400.00 in filing fees. (ECF No. 18).
Because Ms. Mitchell did not consent to a magistrate judge
for all proceedings, her request for attorney's fees has
been referred to me, pursuant to Standing Order 2014-01, for
review and to make recommendations under 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). The Commissioner
opposed Ms. Mitchell's petition for fees contending that
the fee sought is excessive. [ECF No. 19]. Ms. Mitchell
subsequently filed a reply. [ECF No. 20]. For the reasons set
forth below, I recommend that Ms. Mitchell's Motion for
Attorney's Fees be GRANTED in part and DENIED in part.
Mitchell filed an application for disability insurance
benefits on September 19, 2012. (Tr. 153-56). After being
denied benefits at the administrative level, Ms. Mitchell
appealed the decision to this Court. [ECF No. 1]. She was
represented on appeal by a law firm based in Washington,
D.C., with the assistance of another law firm in Maryland. In
her motion for judgment on the pleadings, Ms. Mitchell raised
several primary arguments, including: (1) that the ALJ erred
in evaluating the medical opinion evidence; (2) that the ALJ
failed to properly evaluate the Listings; (3) that the ALJ
failed to perform a function-by-function analysis; (4) that
the ALJ erred in assessing the credibility of Ms.
Mitchell's subjective complaints; and (5) that the
ALJ's holding ran afoul of the Fourth Circuit's
decision in Mascio v. Colvin, 780 F.3d 632, 638 (4th
Cir. 2015). [ECF No. 15]. The Commissioner subsequently
submitted a consent motion to remand Ms. Mitchell's claim
to the Agency under sentence four of 42 U.S.C. § 405(g).
(ECF No. 16). This Court granted the consent remand on
September 22, 2016. [ECF No. 17].
October 19, 2016, Ms. Mitchell timely filed the instant
Motion for Attorney's Fees. [ECF No. 18]. Ms. Mitchell
seeks $9, 520.45 for her counsel, which represents 45.29
hours of attorney work time at an hourly rate of $193.19, and
4.91 hours of legal assistant work time at an hourly rate of
the EAJA, prevailing parties in civil actions brought by or
against the United States are entitled to an award of
attorney's fees and expenses, unless the court finds the
position of the government was substantially justified or
that special circumstances make an award unjust. 28 U.S.C.
§ 2412(d)(1)(A); Crawford v. Sullivan, 935 F.2d
655, 656 (4th Cir. 1991). To receive attorney's fees, the
prevailing party must submit a fee application and an
itemized statement of fees to the court within thirty days of
final judgment. Id.
the district court determines that a plaintiff has met the
threshold conditions for an award of fees and costs under the
EAJA, the district court must undertake the “task of
determining what fee is reasonable.” Hyatt v.
Barnhart, 315 F.3d 239, 253 (4th Cir. 2002); (quoting
INS v. Jean, 496 U.S. 154, 161 (1990)). Counsel
“should submit evidence supporting the hours worked,
” and exercise “billing judgment” with
respect to hours worked. Hensley v. Eckerhart, 461
U.S. 424, 433-34 (1983). “Hours that are not properly
billed to one's client also are not properly
billed to one's adversary pursuant to statutory
authority.” Id. at 434 (quoting Copeland
v. Marshall, 641 F.2d 880, 891 (D.C. Cir. 1980)
(emphasis in original)). Further, the district court is
accorded “substantial discretion in fixing the amount
of an EAJA award, ” but is charged with the duty to
ensure that the final award is reasonable. Hyatt,
315 F.3d at 254 (quoting Jean, 496 U.S. at 163).
Benagh's accounting of hours billed for her work in Ms.
Mitchell's case totals 52.83 hours. Notably, Ms. Benagh
is only requesting compensation for 41.89 hours. [ECF No.
18-3]. Regardless, I find that this amount of time is
excessive. Most significantly, Ms. Benagh alleges that she
spent 32.98 hours preparing and drafting Plaintiff's
motion for summary judgment. [ECF No. 18-3]. In support of
her argument, Ms. Benagh contends that the time allocated was
reasonable in light of the record-intensive nature of the
case and the unusual amount of medical research involved. Pl.
Mem. 3-5. However, Ms. Benagh has failed to show why this
case was more record-intensive or required more medical
research than a typical Social Security case. Indeed, the
record in this case was 414 pages long, [ECF No. 11], which
is quite short in comparison with other Social Security
appeals, which regularly involve records in excess of 700
pages. Ms. Benagh has also failed to establish that any of
the legal or factual issues involved were unique or novel,
particularly in light of Counsel's extensive expertise.
Ms. Benagh further contends that the numerous claims stemming
from the ALJ's opinion supports the reasonableness of the
hours her counsel expended. The number of issues raised in a
case, however, is not equivalent to the number of meritorious
issues in a case. The Court is wary of creating an incentive
to include frivolous arguments by basing the reasonableness
of time expended by an attorney on the number of arguments
other excessive claims warrant reduction. For example, Ms.
Benagh includes four entries totaling .95 hours for work
related to the preparation of the EAJA fee petition. EAJA fee
petitions are near-identical in every case, with the
exception of dates, amounts, and a single paragraph
describing the outcome of the case. Given the routine nature
of these documents, it is difficult to see how they would
take experienced counsel significant time to prepare.
Bradford v. Colvin, No. WMN-14-2016, 2015 WL
5895795, at *4 (D. Md. Oct. 5, 2015). Ms. Benagh also
includes 1.91 hours for a legal assistant to proofread and
critique the fee petition and motion for summary judgment.
[ECF No. 18-3]. However, “[t]asks of a clerical nature
are not compensable as attorney's fees.”
Barnett v. Colvin, No. Civ. JKB-14-2588, 2015 WL
1736796, at *2 (D. Md. Apr. 15, 2015) (internal citations
omitted). Accordingly, the Commissioner should not pay for a
legal assistant to review and critique these documents,
written by counsel, before filing. Furthermore, Ms. Benagh
includes 3.00 hours for co-counsel, of Andalman Flynn, to
review and edit Ms. Mitchell's complaint and motion for
summary judgment. [ECF No. 18-3]. However, the Commissioner
should not pay for two separate experienced attorneys to
Ms. Mitchell fails to establish that the number of hours
expended by her counsel in this case was reasonable. Notably,
the $9, 520.45 fee sought by Ms. Mitchell as compensation for
those hours far exceeds the heartland of fees recently
awarded in cases presenting in a similar procedural posture.
See, e.g., Mongan v. Colvin, Civil
No. SAG-16-64 (Nov. 16, 2016) (awarding fees in the amount of
$1, 985.00); Hunter v. Colvin, Civil No. SAG-15-3758
(Nov. 16, 2016) (awarding fees in the amount of $3, 566.29);
Eberly v. Colvin, Civil No. SAG-15-3110 (Nov. 10,
2016) (awarding fees in the amount of $4, 070.52);
Lamberti v. Colvin, Civil No. SAG-15-3107 (Nov. 10,
2016) (awarding fees in the amount of $3, 700.00); Trego
v. Colvin, Civil No. SAG-15-3822 (Nov. 9, 2016)
(awarding fees in the amount of $4, 060.56); Young v.
Colvin, Civil No. SAG-15-3297 (Nov. 8, 2016) (awarding
fees in the amount of $4, 530.15); Baylor v. Colvin,
Civil No. SAG-15-3520 (Nov. 7, 2016) (awarding fees in the
amount of $3, 185.89); Schenk v. Colvin, Civil No.
SAG-16-0314 (Nov. 2, 2016) (awarding fees in the amount of
$4, 100.00); Turner v. Colvin, Civil No. SAG-16-0498
(Oct. 27, 2016) (awarding fees in the amount of $2, 886.00);
Schock v. Colvin, Civil No. SAG-16-3719 (Oct. 26,
2016) (awarding fees in the amount of $3, 022.22). This Court
is accorded “substantial discretion in fixing the
amount of an EAJA award, ” but is charged with the duty
to ensure that the final award is reasonable. Hyatt v.
Barnhart, 315 F.3d 239, 254 (4th Cir. 2002) (quoting
INS v. Jean, 496 U.S. 154, 163 (1990)). Courts
within this circuit have held, and I agree, that in typical
Social Security cases it is reasonable for an attorney to
expend between twenty and forty hours. See, e.g.,
Faircloth v. Colvin, Civil No. 2:13-cv-156, 2014 WL
5488809, at *11 (E.D. Va. Oct. 29, 2014); Gibby v.
Astrue, Civil No. 2:09-cv-29, 2012 WL 3155624, at * 5
(W.D. N.C. Aug. 2, 2012). Thus, I conclude that, in light of
the relative brevity of the record in this case and the lack
of any indication that it was legally or factually more
complex than the typical Social Security case, an award of
attorney's fees for 30 hours of work is reasonable.
I recommend an award of fees for 30 hours of attorney work at
the requested hourly rate of $193.19 for a total fee of $5,
795.70, plus the $400.00 filing fee. That award is reasonable
because it fairly compensates counsel for work performed on
the appeal, commensurate with - and in fact greater than -
what other experienced lawyers receive in similar cases,
without compensating for duplicative or unnecessary work
performed on Ms. Mitchell's behalf.
on the foregoing, I recommend that the Court GRANT in part
and DENY in part Ms. Mitchell's Motion for Attorney's
Fees, and award her $5, 795.70 in fees, plus $400.00 in
costs, under the EAJA. Any objections to this Report and
Recommendations must be served and filed within fourteen (14)