Opinion
Civil No. 00-2452 ADM/JMM.
April 25, 2002.
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge pursuant to Defendant Jo Anne B. Barnhart's ("Defendant" or "Commissioner") Objections [Doc. No. 25] to the January 15, 2002, Report and Recommendation ("RR") of Magistrate Judge John M. Mason [Doc. No. 24]. The RR recommended that Plaintiff's Petition for Attorney Fees [Doc. No. 18] be granted, and that Defendant be ordered to pay Plaintiff $5,075 in attorney fees for 35 hours of work at a rate of $145 per hour. For the reasons set forth below, the RR is adopted in part and modified in part. The factual background for this matter is adequately set forth in the RR and is incorporated by reference for the purposes of Defendant's present objections.
II. DISCUSSION
A district court shall make an independent, de novo evaluation of those portions of the RR to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge. See 28 U.S.C. § 636(b)(1)(C); D. Minn. LR 72.1(c)(2). Defendant argues that the Commissioner's position was substantially justified, and that Judge Mason used an improper standard of review in determining whether or not Plaintiff's requested fees were excessive.
A. Substantial Justification
The Equal Access to Justice Act ("EAJA") provides that a court shall award attorney fees to a prevailing party unless the court finds that the position of the Commissioner was substantially justified or that special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The test of substantial justification is one of reasonableness. Pierce v. Underwood, 487 U.S. 552, 563-64 (1988). The government bears the burden of proving that its position was substantially justified. Friends of Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885 (8th Cir. 1995).
Judge Mason found that the Administrative Law Judge ("ALJ") unreasonably relied on the testimony of the medical expert ("ME") because the ME did not consider all the evidence in rendering his opinion. RR at 5. The ME failed to address a notation in the margin of Plaintiff's 1996 hospitalization records that possibly supported a finding of disability. The RR concluded that "[b]y failing to acknowledge relevant evidence that indicated the severity of Plaintiff's impairment, the Government's position was likewise not clearly reasonable or well grounded in fact." RR at 5-6. Defendant argues that even without discussing the margin note, the ME nevertheless considered the relevant medical records, and therefore the ALJ was reasonable to rely on his testimony. Defendant further asserts that the medical records were long, cryptic, and largely undecipherable, and therefore the ME should not be expected to address the handwritten notation. Defendant also argues that two state agency physicians reviewed the record and reached the same conclusion that the ME reached. Therefore, Defendant claims that the Commissioner's position was substantially justified.
These facts do not meet Defendant's burden of establishing substantial justification. In the September 12, 2001, Order [Doc. No. 16], this Court found that "substantial evidence does not support the ALJ's determination that Plaintiff is not disabled as the result of her asthma." Order at 4 (emphasis in original). The ALJ entered a finding of "no disability" on the basis of ME testimony that at no time did he find "documented that the claimant qualifies for six visits a year" according to Listing 103.03B. R. at 61. Four asthma attacks were clearly documented in the record. The margin notation in Plaintiff's hospital record from a January 1996 hospitalization suggested the possibility of two more attacks, which would meet the "six attacks" requirement. R. at 233. Because this information related directly to the determinative issue regarding disability, the ALJ's determination was not supported by substantial evidence. Accordingly, the Commissioner's position was not substantially justified. Defendant's objection on the basis of substantial justification is denied, and the portion of the RR finding no substantial justification, Part I(A), is adopted.
B. Reasonableness of Fees
Defendant objects to Judge Mason's finding that "Defendant has not met the burden of demonstrating that Plaintiff's counsel's allocation of time is excessive," and requests a reduction in the amount of time for which fees are awarded by at least half. RR at 7. Defendant argues it is Plaintiff's burden to establish the reasonableness of the fees for which compensation is sought. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) ("The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed."). Defendant claims the accuracy of Plaintiff's original attorney's time sheet is questionable, because Plaintiff's original attorney's time sheet was amended to correct dates and clerical errors. Defendant also asserts that 21 hours of preparation time for a motion and accompanying 18 page memorandum of law is excessive for Plaintiff's attorney, who possessed significant expertise in the social security field. Def. Objections at 5. Judge Mason explained that review of the transcript and preparation of the memorandum were complicated for Plaintiff's attorney because the medical records were difficult to decipher and much of the transcript was cryptic. The RR also observed that Plaintiff's counsel's efforts were "of great value in that he was successful in obtaining a reversal of Defendant's decision to deny Plaintiff supplemental security income." RR at 7. Judge Mason noted that fees awarded in similar cases is a critical factor in determining reasonableness. McDannel v. Apfel, 78 F. Supp.2d 944, 948 (S.D.Iowa 1999); see also Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994) (affirming district court's reduction of hours from 69.7 to 46.05); McMullen v. Apfel, 57 F. Supp.2d 773, 774 (S.D.Iowa 1999) (approving 25 hours attorney fees in a social security case); Stanfield v. Apfel, 985 F. Supp. 927, 930 (E.D.Mo. 1997) (approving 30 hours of work for reviewing transcript, preparing brief in support of motion for summary judgment and preparing application for EAJA fees).
The RR states that "Plaintiff requests attorney's fees compensation for 21 hours of work reviewing the hearing transcript, drafting a one-page motion for summary judgment, and researching and drafting an 18-page memorandum of law." RR at 6-7. Plaintiff's counsel sets forth the following allocation of time:
April 1, 2001 1 hour Review Transcript/Draft Memo
April 4, 2001 7 hours Draft [Summary Judgment] Memo/Research
April 5, 2001 5 hours Draft [Summary Judgment] Memo/Research
April 7, 2001 3 hours Draft [Summary Judgment] Memo
October 27, 2001 6 hours Final Revisions on Memo; Draft Motion
Pl. Pet. Ex. D. This allocation adds up to 22 hours. The additional 13 hours submitted in the Time Records are uncontested. See id. The RR recommends Defendant should be ordered to pay for 35 hours of work. RR at 8. Defendant contests that the hours allocated to transcript review and drafting the memo are excessive.
In determining the amount of an attorney fee award, a court must determine the reasonableness of the fee requested and assess the value of the attorney's services to the client. Ward v. Sullivan, 758 F. Supp. 1312, 1314 (E.D.Mo. 1991). Defendant relies on Baker v. Bowen, 707 F. Supp. 481, 486 (D. Wyo. 1989) (finding that it is somewhat excessive for an experienced social security lawyer to bill 14.6 hours for legal research and preparation of an appellate brief) and Gidcumb v. Secretary of Health and Human Servs., 650 F. Supp. 96, 98 (W.D.Ky. 1986) (finding 12.6 hours research unreasonable in an area where the issues are narrowly defined because a routine social security appeal can be thoroughly researched in three hours by experienced counsel).
Plaintiff counters that "[although the issues in many of [sic] Social Security cases are not novel, the facts are." Pl. Pet. at 8. Confusingly, Plaintiff's attorney's itemized allocation specifies that only one hour was spent to "review transcript." Id. Ex. D. However, it is reasonable to assume that during the process of researching and drafting the memorandum the transcript would be repeatedly referenced and examined. Therefore, it is reasonable to expect that the time required to research and draft the memorandum would be considerable, particularly given the lengthy 331 page transcript laden with medical records.
Defendant objects to Judge Mason's finding that Plaintiff's itemization of time does not represent a duplication of work by two different attorneys. RR at 8. Plaintiff's attorney indicated that his associate worked extensively on the project. Pl. Pet. at 8. Defendant argues that the time sheet is inadequately documented and does not indicate who performed the tasks for which fees are sought, and may represent a duplication of efforts. Defendant asserts that Judge Mason inappropriately required Defendant to shoulder the burden of showing Plaintiff's requested fees are unreasonable. See Hensley, 461 U.S. at 434 (stating that a plaintiff's counsel must make a "good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary"). Defendant alleges that Plaintiff's attorney neglected to submit "meticulous, contemporaneous time records that reveal, for each lawyer for whom fees are sought, all hours for which compensation is requested and how those hours were allotted to specific tasks." Case v. Unified Sch. Dist. No. 233, Johnson County, Kan., 157 F.3d 1243, 1250 (10th Cir. 1998).
Defendant argues that requiring the Commissioner to prove duplicative work is unfair, particularly where Plaintiff did not delineate which work was done himself, and which work was done by his associate. While the time records submission does not identify which attorney performed each task, it does reveal a detailed itemization of specific tasks performed and how many hours per task were required. Plaintiff's counsel submits that a good faith effort has been made to assure that no fees requested are based on excessive, redundant or otherwise unnecessary hours. Pl. Pet. at 8. The assertion by Defendant that the time sheet might possibly represent a duplication of efforts, without evidence in the record giving rise to a concern about the veracity of Plaintiff's submissions, is not sufficient to conclude that the requested hours represent a duplication of efforts.
However, given the prior case law approving 25-30 total hours for similar cases, and 13-15 hours for legal research and writing specifically, there is a basis for reducing the hours approved in this case based on the significant expertise and background of Plaintiff's counsel. While the difficulty in reviewing the transcript and facts of this case do justify a somewhat larger than ordinary amount of time required, 17 hours of work is reasonable for the 22 hours allocated to transcript review and memorandum drafting in this case. Accordingly, 30 hours of work will be approved at the hourly rate of $145 per hour. The portion of the RR finding the requested 35 hours of attorney fees reasonable, Part I(B), is modified to approve 30 hours of work.
III. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's Objections [Doc. No. 25] are DENIED IN PART and GRANTED IN PART,
2. The RR [Doc. No. 24] Part I(A) is ADOPTED, and Part I(B) is MODIFIED to approve 30 hours of work, and
3. Defendant is ordered to pay Plaintiff the sum of $4,350 in attorney fees for 30 hours of work at a rate of $145 per hour.