United States District Court, E.D. Missouri, Eastern Division
GERALD M. P., Plaintiff,
ANDREW M. SAUL, Commissioner of the Social Security Administration, Defendant.
MEMORANDUM AND ORDER
M. BODENHAUSEN UNITED STATES MAGISTRATE JUDGE
matter is before the Court on plaintiff's application for
attorney's fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. [Doc. # 26]. Defendant has
filed a response objecting to the amount of fees sought and
plaintiff has filed a reply. [Docs. #27 and # 28].
applied for $9, 517.580, representing 46.6 hours of attorney
work at the hourly rate of $204.24. Plaintiff also seeks an
additional 2.5 hours for time expended to prepare a reply in
support of the fee application. Defendant does not oppose the
requested hourly rate but argues that plaintiff's request
for 41.9 hours for briefing the issues in this case should be
reduced to 25 hours.
brief in support of his complaint raised four issues. First,
he contended that the Administrative Law Judge (ALJ) erred in
failing to identify and reconcile conflicts between the
Dictionary of Occupational Titles (DOT) and the vocational
expert's testimony regarding alternative work available
in the national economy that could be performed by the
hypothetical individual with the limitations proposed by the
Second, he argued that the ALJ erred in focusing the analysis
of plaintiff's IQ on adaptive strengths, rather than
deficits in adaptive functioning, as required by the Supreme
Court in Moore v. Texas, 137 S.Ct. 1039 (2017).
Third, plaintiff argued, the ALJ improperly relied on her lay
medical understanding in determining that plaintiff's
childhood IQ score was not significantly subaverage and then
using that determination to discount the lower IQ scores
obtained when plaintiff was an adult. Finally, plaintiff
argued that the ALJ erred in failing to obtain the opinion of
a medical expert in determining whether his intellectual
impairment equals Listing 12.05. After plaintiff filed his
brief in support of the complaint, defendant moved to remand
the matter for further consideration. Plaintiff concurred and
the Court granted the motion. Plaintiff timely filed his
application for fees.
reviewing an EAJA application, the Court considers “not
merely whether the attorney's work was valuable to the
client, but whether the issues were novel or complex, whether
the record is voluminous or the facts are unusually complex,
whether the attorney's specialized skill or knowledge was
required, and what the usual number of hours for similar
cases in the area.” Johnson v. Barnhart, No.
03-0054-CV-W-REL-SSA, 2004 WL 213183, at *1 (W.D. Mo. Jan.
argues that this case raised “generally
straightforward” issues. The Court believes that issues
involving IQ and conflicts with the DOT are more complex than
defendant's characterization suggests. As defendant
further asserts, however, plaintiff's counsel previously
addressed two of the issues in a brief submitted in April
2018. In the brief in support of the complaint in Kimmy
M. R. v. Berryhill, 4:17-CV-2908-SPM (E.D. Mo. Apr. 18,
2018), plaintiff's counsel argued that the ALJ improperly
weighed the plaintiff's adaptive strengths rather than
addressing deficits in adaptive functioning and failed to
obtain a medical opinion in determining whether the
plaintiff's cognitive deficits equal a listing. [Doc. #
27-1 at 9-10; 12-14]. The parties dispute whether the overlap
between the two briefs constitutes “nearly half”
of plaintiff's argument here [Doc. # 27 at 2], or merely
three paragraphs [Doc. # 28 at 2-3]. This argument regarding
how much plaintiff's counsel “borrowed” from
other writings is beside the point. It is not unusual for
parties, ALJs, and courts to re-use previously drafted legal
standards and arguments for the sake of efficiency. But this
practice does not eliminate the need to summarize the medical
record and identify the issues before the drafting begins.
Here, the medical evidence included 30-year-old special
education records, mental health records from the Missouri
Department of Corrections, an assessment from the Missouri
Division of Vocational Rehabilitation, three tests of
cognitive functioning, and records from four inpatient
hospitalizations. Thus, the Court is not persuaded that the
nature of the issues or prior briefing justifies reducing the
hours in this case. See Williams v. Berryhill, No.
4:16-CV-794-DDN (E.D. Mo. Aug. 28, 2017) (rejecting argument
that fee request should be reduced because counsel was
experienced practitioner and arguments were typical).
argues that the “guideline range” for briefing
social security cases is 15 to 20 hours, citing three cases
in support. In Thomas v. Astrue, No.
10-1255-CV-W-FJG, 2012 WL 1564291, at *1 (W.D. Mo. Apr. 25,
2012), the court reduced plaintiff's hours by fifty
percent to 18.625 hours, an amount that was “within the
guideline range of 15 to 20 hours . . . for cases which do
not involve novel or complex issues.” Similarly, in
Reed v. Astrue, No. 4:10CV431 TIA, 2011 WL 3943606,
at *2 (E.D. Mo. Sept. 7, 2011), the court reduced
plaintiff's request for 55.8 hours to 32.5 (noting that
plaintiff did not claim that the issues were novel or
complex). Finally, in Johnson, 2004 WL 213183, the
court reduced a request for 36.7 hours to 23.9, without
addressing whether the issues were novel or complex. Because
these cases addressed more routine issues than those raised
here, they are not useful comparators.
reply, plaintiff cites several cases to support his
contention that his requested hours are well within the usual
number of hours for similar cases in the area. In Kolich
v. Berryhill, No. 16-CV-792-MDH, (W.D. Mo. Nov. 30,
2017), the court approved 44.9 hours over the defendant's
objection. In Williams v. Berryhill, No.
4:16-CV-794-DDN (E.D. Mo. Aug. 28, 2017), the court approved
52.65 hours for a case where the records included
visual-impairment medical records with unfamiliar medical
terminology. A review of the docket sheets for these cases
shows that counsel filed reply briefs, something that did not
occur in this case. In Inboden v. Berryhill, No.
14-CV-915-CJP, 2017 WL 1348028, at *3 (S.D. Ill. Apr. 5,
2017), the court approved 56.2 hours in a case in which the
evidentiary record was over 1, 200 pages long, finding the
request was “not completely outside the realm of
reasonableness for a social security disability case, albeit
on the high end.” In Barnett v. Berryhill, No.
15-CV-1018-CJP, 2017 WL 1348037, at *2 (S.D. Ill. Apr. 5,
2017), the court reduced plaintiff's request for 88.3
hours to 77.37 hours. These cases establish that 46.6 hours
is not per se unreasonable for social security cases
in this area. Based on these cases, however, and in light of
the comparatively small administrative record and the fact
that plaintiff did not have to file a reply in support of his
complaint, the Court will reduce plaintiff's request by 5
hours. In addition the Court will reduce by 50 percent, or
0.5 hours, the time spent reviewing routine filings. The
Court will grant plaintiff's request for an additional
2.5 hours to reply to defendant's opposition.
IT IS HEREBY ORDERED that plaintiff's
motion for attorney's fees [Doc. # 26] is
granted. Plaintiff is awarded attorney's
fees in the amount of $8, 904.86 for 43.6 hours (46.6 hours
as requested in the motion plus 2.5 hours for reply minus 5.5
hours as detailed above), to be paid by the Social Security
Administration to plaintiff.
FURTHER ORDERED that the foregoing award is subject to offset
for any preexisting debt plaintiff owes to the United States.
After deducting any debt subject to offset, defendant shall
pay the award directly to counsel for the plaintiff.