J. LEON HOLMES, District Judge.
This is a Social Security disability appeal in which the Court found that the administrative law judge committed error and remanded under sentence four of 42 U.S.C. § 405(g). The plaintiff has filed a petition for attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. She requests a fee in the amount of $8,411.77, calculated on the basis of 46.25 hours multiplied by $181.88 per hour. She bases that hourly rate on the statutory maximum of $125 per hour adjusted by dividing the Consumer Price Index-All Urban Consumers' rate for August of 2011 by the cost of living for March of 1996 and multiplying that figure by 125. She also requests payment of $17.13 in expenses.
The Commissioner has responded and concedes that the plaintiff is entitled to reimbursement of attorney's fees under the Equal Access to Justice Act but contends that the application is excessive and poorly documented. Specifically, the Commissioner objects to fifteen telephone calls each of which was billed at 0.5 hours for a total of 7.5 hours for attorney time to talk on the telephone regarding a Social Security
In reply, the petitioner has submitted an addendum that explains in more detail entries that were described only generally in the initial submission. The addendum specifies that each of the telephone calls was a phone call with the client and each consultation was a consultation with the client. The addendum also specifies the documents that were drafted on each of the dates that previously had been described only as "drafted document." The first of these entries — a letter to the Social Security Administration — was billed at 0.5 hours on April 7, 2010, but the addendum notes that entry should not have been included. No award will be made for that entry.
Under the Equal Access to Justice Act, a prevailing social security claimant is entitled to an award of reasonable attorney's fees and expenses unless the Commissioner's position in denying benefits was "substantially justified" or special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). In this case, the Commissioner concedes that the plaintiff is entitled to an award of attorney's fees pursuant to the Act. See Shalala v. Schaefer, 509 U.S. 292, 300-02, 113 S.Ct. 2625, 2631-32, 125 L.Ed.2d 239 (1993) (holding that a claimant who wins a sentence-four remand order and judgment is a prevailing party entitled to Equal Access to Justice Act fees).
Attorney's fees may not be awarded in excess of $125.00 per hour — the maximum statutory rate under the Act — unless the Court finds that an increase in the cost of living or a special factor justifies a higher fee. 28 U.S.C. § 2412(d)(2)(A). The decision to increase the hourly rate is not automatic and remains at the discretion of the district court. McNulty v. Sullivan, 886 F.2d 1074, 1074 (8th Cir.1989); see also Hickey v. Secretary of HHS, 923 F.2d 585, 586 (8th Cir.1991) (In reviewing a request for attorney's fees, "[t]he district court [is] `in the best position to evaluate counsel's services and fee request, particularly when the court has had the opportunity to observe first-hand counsel's representation on the substantive aspects of the disability claim.'") (quoting Cotter v. Bowen, 879 F.2d 359, 361 (8th Cir.1989), abrogated on other grounds by Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002)). However, in Johnson v. Sullivan, 919 F.2d 503, 505 (8th Cir. 1990), the Eight Circuit held where "an EAJA petitioner presents uncontested proof of an increase in the cost of living sufficient to justify hourly attorney's fees of more than $75 per hour, enhanced fees should be awarded."
The Eighth Circuit has held that, "[u]nder ordinary circumstances ... the cost of living affects each litigant within a judicial district to the same degree" and, consequently, enhanced hourly fee rates based on cost-of-living increases should be consistent in each case, "rather than producing disparate fee awards from each court within the district or from different districts within this circuit." Johnson, 919 F.2d at 505. In light of common billing practices among attorneys, and to enable the courts in this district to treat fee requests consistently, the Court has decided that the plaintiff's attorney's fee award should be determined calculated based on an hourly rate in a round figure — the kind of figure that commonly forms the basis for determining an attorney's fee. Taking into account the Consumer Price Index, as well as the Equal Access to Justice Act fee awards from past cases within Arkansas, the Court believes that an hourly rate of $175.00 will reasonably compensate the plaintiff's attorney for the work performed in this case. See, e.g., Ware v. Astrue, No. 4:08CV02908, 2010 WL 582580 (E.D.Ark. Feb. 16, 2010) (awarding attorney's fees at an hourly rate of $169.00 for 2008 and 2009).
In addition, the Court agrees with the Commissioner that entries that were originally described merely as "telephone call," "received and reviewed documents," and "consultation," are troublesome inasmuch as every one of those entries, except for two "consultation" entries, is billed at 0.5 hours. The fee application contains 49 entries, 39 of which are recorded as taking 0.5 hours. The other 10 entries are all greater than 0.5 hours. No entry records time of less than 0.5 hours. It is not
The fee award will be based on an hourly rate of $175.00 and the time entries submitted by the plaintiff, adjusted as follows:
DESCRIPTION OF ORIGINAL REVISED DATE WORK INVOLVED TIME TIME 2/17/10 Initial consultation. 1.5 1.5 4/1/10 Consultation; reviewed documents. 0.5 0.2 4/7/10 Drafted, reviewed and signed letter (secretarial time not included). 0.5 0.0 4/28/10 Telephone call. 0.5 0.2 5/1/10 Received and reviewed documents. 0.5 0.2 8/1/10 Received and reviewed document. 0.5 0.2 8/10/10 Drafted Complaint and other court documents. 0.75 0.75 8/16/10 Drafted, reviewed and signed letter (secretarial time not included). 0.5 0.5 8/19/10 Received and reviewed document. 0.5 0.2 9/5/10 Received and reviewed document. 0.5 0.2 9/17/10 Received and reviewed Order. 0.5 0.2 9/21/10 Reviewed file; Drafted, reviewed and signed letter (secretarial time not included). 0.5 0.5 9/27/10 Drafted, reviewed and signed letters (secretarial time not included). 0.5 0.5 10/7/10 Drafted document. 0.5 0.2 10/9/10 Consultation. 0.5 0.2 10/12/10 Drafted document. 0.5 0.5 10/12/10 Consultation; Drafted, reviewed and signed letter (secretarial time not included). 0.75 0.75 10/12/10 Received and reviewed document; Drafted, reviewed and signed letter (secretarial time not included). 0.5 0.2 10/21/10 Drafted document. 0.5 0.2 11/8/10 Telephone call. 0.5 0.2 11/8/10 Reviewed, scanned, and uploaded court document. 0.5 0.2 11/30/10 Received and reviewed Answer. 0.5 0.2 12/1/10 Received and reviewed document. 0.5 0.2 1/3/11 Telephone call. 0.5 0.2 1/3/11 Reviewed documents and medical records. 3.75 3.75 1/4/11 Reviewed documents and medical records. 2.5 2.5 1/5/11 Drafted Brief. 5.75 5.75 1/6/11 Drafted Brief. 3.25 3.25
1/7/11 Drafted Brief and research. 6.5 6.5 1/8/11 Drafted, reviewed and signed letter (secretarial time not included). 0.5 0.5 1/19/11 Telephone call. 0.5 0.2 1/21/11 Consultation. 0.75 0.75 1/31/11 Telephone call. 0.5 0.2 2/17/11 Received and reviewed document. 0.5 0.2 2/19/11 Received and reviewed letter. 0.5 0.2 2/21/11 Telephone call. 0.5 0.2 2/22/11 Received and reviewed document. 0.5 0.2 2/23/11 Telephone call. 0.5 0.2 2/25/11 Reviewed Defendant's Brief. 0.75 0.75 3/3/11 Telephone call. 0.5 0.2 3/28/11 Telephone call. 0.5 0.2 4/15/11 Telephone call. 0.5 0.2 5/10/11 Telephone call. 0.5 0.2 5/12/11 Telephone call. 0.5 0.2 5/16/11 Telephone call. 0.5 0.2 5/18/11 Telephone call. 0.5 0.2 6/27/11 Telephone call. 0.5 0.2 7/1/11 Received and reviewed document. 0.5 0.2 7/7/11 Drafted, reviewed and signed letter (secretarial time not included). 0.5 0.5 ___________ _________ TOTAL TIME: 46.25 35.65 TOTAL FEE based on 35.65 hours × $175.00 = $6,238.75 EXPENSES 17.13 ___________ TOTAL REIMBURSEMENT $6,255.88
Recently, the Supreme Court held that any Equal Access to Justice Act award should be made payable to the litigant, not her attorney, and that the award is subject to offset for any debt owed to the government by the litigant. Astrue v. Ratliff, ___ U.S. ___, 130 S.Ct. 2521, 177 L.Ed.2d 91 (2010). Therefore, after the plaintiff's federal debt, if any, is subtracted, the Court directs that the above award be made payable to the plaintiff, in care of her attorney, Robert P. Young, and mailed to Mr. Young, pursuant to the Commissioner's standard method of issuing payment.