McAnally v. Saul

          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 ...