United States District Court, D. Alaska
ORDER AWARDING ATTORNEY'S FEES PURSUANT TO THE
EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. §2412
TIMOTHY M. BURGESS, UNITED STATES DISTRICT JUDGE
Plaintiff
Angela Gail McAnally, by her attorney, Edward A. Wicklund,
moves the Court for an award to be paid pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412.[1] Defendant Andrew Saul (the
“Commissioner”) opposes this
request.[2]Accordingly, and for the reasons that
follow, Plaintiff's Motion for Attorney's Fees is
GRANTED in part and DENIED
in part.
Ms.
McAnally initiated this action on July 24, 2018 after
exhausting her administrative remedies.[3] On July 19, 2019
and July 22, 2019, the Court vacated the Commissioner's
final decision and remanded for further administrative
proceedings consistent with its decision.[4] Ms. McAnally
filed the pending Motion for Attorney Fees on October 17,
2019, [5] the Commissioner responded on October 29,
2019, [6] and Ms. McAnally filed a Reply on November
5, 2019.[7] The Commissioner alleges that its position
was substantially justified and that Ms. McAnally's
attorney's fees request was unreasonable.[8]
1.
The Commissioner's position was not substantially
justified.
In this
case, the vocational expert opined that Ms. McAnally could
perform the positions of basket filler (DOT 529.687-010),
requiring frequent handling, and egg candler (DOT
529.687-074), requiring constant fingering and handling, with
one hand and an assist with the other hand.[9] In his written
decision, the ALJ then determined that the vocational
expert's testimony was consistent with the information in
the Dictionary of Occupational Titles (“DOT”)
without further discussion.[10]
Pursuant
to Social Security Ruling (“SSR”) 00-4p, an ALJ
has an affirmative responsibility to provide a reasonable
explanation for a conflict between the vocational
expert's testimony and the DOT. When vocational evidence
provided by a vocational expert is not consistent with
information in the DOT, the adjudicator must resolve this
conflict before relying on the vocational expert's
evidence.[11] Other district courts have concluded
that while “the DOT does not explicitly state that the
job of egg candler [DOT 529.687-074] requires the use of both
hands, the DOT does indicate that an egg candler packs eggs
in cartons and may break substandard eggs in container, which
generally requires the use of both hands” and
“[t]his evidence calls into question the VE's
testimony that egg candling can be performed with only one
hand.”[12] For the reasons above, the position of
the Commissioner was not substantially
justified.[13]
2.
Ms. McAnally's requested attorney fees are reduced to
account for the inclusion of time spent on clerical
tasks.
Ms.
McAnally requests $6, 326.24 in attorney fees and $610.00 in
paralegal fees for a total of $6, 936.24 in fees for work
performed in 2018 and 2019.[14] Separately and additionally,
Ms. McAnally requests fees for attorney time spent in 2019
preparing her reply brief in the amount of 3.5 hours at
$201.60/hour (2018 rate) for an additional amount of $705.60
and a total of $7, 641.48 in fees ($6, 936.24 $705.60) and
$16.26 for expenses.[15] The Commissioner alleges that several
paralegal and attorney tasks were primarily clerical in
nature, specifically:
7/23/18 FDC prospect packet prepared for client completion
for 0.6 hour (at paralegal rate);
7/23/18 FDC prospect packet returned via Right Signature for
execution for 0.3 hour (at paralegal rate);
7/26/18 Review unissued summons for 0.1 hour (at attorney
rate);
8/16/18 Note summons issued for 0.1 hour (at attorney rate);
and
8/16/18 Note order directing service & response granting
motion for leave to proceed IFP for 0.1 hour (at attorney
rate).[16]
Ms.
McAnally asserts that the tasks objected to by the
Commissioner were not clerical in the context of EAJA
litigation. She argues that the disputed tasks were a
necessary part of litigation and compensable.[17]
An
award of attorney's fees to a prevailing party under the
EAJA must be reasonable.[18] The court has an independent duty to
review the reasonableness of the fee request and the amount
of the fee award must be determined based on the facts of
each case.[19] The fee applicant must document the
appropriate hours expended in the litigation and submit
evidence in support of those hours worked.[20]
“Reviewing procedural orders, all of which pertain to
the progress of the case, is one of the ways to stay
current.”[21] Clerical tasks are disallowed from EAJA
fee awards as they should be subsumed in firm overhead rather
than billed at paralegal rates.[22] Time spent by an attorney
on clerical work may also be ...