United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the court on Plaintiff's Motion For Payment of Attorney Fee Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1) (1996) ("EAJA"). [DE 16]. Defendant has responded [DE 21], and the time has passed for Plaintiff's reply. This matter is now ripe for decision.
Plaintiff filed her Complaint in this matter on January 18, 2013, appealing the Commissioner's denial of her application for disability insurance benefits. [DE 1]. On June 28, 2013, Plaintiff filed a motion to remand, citing, among other things, her inability to locate a previous claims file in which Plaintiff received a favorable decision and was awarded benefits. [DE 10]. Because Plaintiff had been reasonably unable to procure the file and because the ALJ did not review nor discuss the Plaintiff's prior file, this Court granted Plaintiff's motion and the case was remanded. [DE 13]. On remand, the ALJ issued a decision favorable to the Plaintiff on November 12, 2014. [DE 17-1].
On February 16, 2015, Plaintiff filed an application seeking $351.68 in costs and $12, 457.50 in attorney's fees for 83.05 hours of work at the rate of $150 per hour. [DE 16-1 at 4]. Defendant argues that some of the hours billed should be reduced, that the hourly rate is not reasonable, and that the EAJA fees should be assigned to Plaintiff rather than Plaintiff's counsel. [DE 21].
A. Hours Billed
The EAJA permits a Plaintiff to receive compensation for the number of hours reasonably expended by her attorney on her case. 28 U.S.C. § 2412(d)(2)(A). The plaintiff has the burden of proving that the fees requested under the EAJA are reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The court should exclude time that is "excessive, redundant, or otherwise unnecessary." Id. at 433-34.
Defendant advances three objections to Plaintiff's requested hours: (1) that Plaintiff has improperly billed for clerical work; (2) that Plaintiff has billed for tasks that are duplicative or excessive; (3) and that Plaintiff has improperly billed for travel time that is unnecessary.
1. Clerical Tasks
The Commissioner objects to 6.5 hours billed for clerical work. Although paralegal services are compensable under the EAJA, see Richlin Sec. Serv. Co. v. Chertoff, 553 U.S. 571, 578 (2008), purely clerical tasks are not. Lay v. Astrue, No. CIV.A. 10-346-DLB, 2012 WL 5988822, at *5 (E.D. Ky. Nov. 29, 2012) (citing Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989)). Paralegal work requires some legal knowledge, whereas clerical work is work that does not, "such as filing motions, preparing or reviewing summons, and receiving and filing correspondence." Id. (citing cases).
The Court agrees that Plaintiff has billed for several clerical activities, or activities that appear to require no legal knowledge. These include electronic notification of the issuance of summons (2/1/13) and receipt and review of return of summons (2/22/13), receipt and review of the attorney for the Commissioner's notice of appearance (2/20/13), electronic receipt of the briefing schedule (4/16/2013), travel to Fedex office to obtain the administrative record (4/25/2013), receipt of the Social Security Administration's Electronic Records Express access to the electronic folder with follow up (7/20/2014), and a fax receipt from another attorney indicating the prior claims file is lost with follow up (9/24/2013). Accordingly, the Court will reduce the hours billed by 3.3 hours. The Court will not reduce the fee award by the.2 hours billed for review of filing with follow up to the client on 1/22/2013 and the 3 hours billed for speaking with the client on a number of matters on 1/29/2015, because these activities involved the Plaintiff's attorney communicating to the Plaintiff and are not clerical nor excessive.
2. Duplicative Time
The Commissioner objects to hours billed by Plaintiff that the Commissioner argues are duplicative or excessive. First, the Commissioner objects to 3.5 hours billed beginning on 5/18/2013 regarding the "disposition of claimant's prior claim, " while 4 hours were billed beginning on 8/22/2013, also attempting to locate the prior claims file. The EAJA provides for an award of fees for expenses that are "necessary to the preparation of the [prevailing] party's case." 28 U.S.C. § 2412(d)(2)(A). The Court does not find that these tasks are duplicative, for it is reasonable that Plaintiff's attorney made two separate attempts to locate the earlier claims file. Furthermore, this ...