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Songer v. Commissioner of Social Security Administration

United States District Court, D. Arizona

August 1, 2019

Janice D. Songer, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          Dominic W. Lanza United Slates District Judge.

         Pending before the Court is Plaintiff's Motion for Award of Attorney's Fees Pursuant to the Equal Access to Justice Act (“EAJA”). (Doc. 23.) For the following reasons, the Court will grant the motion and award $8, 987 in fees, plus $400 in filing costs, for a total of $9, 387.


         On August 21, 2018, Plaintiff filed the complaint. (Doc. 1.)

         On October 26, 2018, the day on which the answer was due, Defendant filed a motion for an extension of time to answer (Doc. 8), and the following day, the Court granted the motion and extended the deadline to November 26, 2018 (Doc. 10). On November 26, 2018, Defendant filed an answer.

         On January 24, 2019, Plaintiff filed her opening brief. (Doc. 14.) The opening brief states that on July 2, 2013, Plaintiff, a former police officer, was diagnosed with multiple sclerosis resulting in abnormality of gait, malaise and fatigue, memory loss, and visual disturbance. (Id. at 2-3.) She was also treated for restless leg syndrome, occasional falls, and unsteady balance, as well as lower back pain and various foot conditions that caused difficulty walking. (Id. at 3-9.) In a “Multiple Sclerosis Impairment Questionnaire, ” dated July 1, 2014, Kathleen A. LuPone, APRN, reported that Plaintiff “was incapable of even low stress work.” (Id. at 4.) In a “Disability Impairment Questionnaire, ” dated February 20, 2015, Nandria Keole, M.D., reported that Plaintiff could sit for only two hours and stand or walk for only two hours during an 8-hour workday, would frequently experience symptoms severe enough to interfere with attention and concentration, would need unscheduled 15-minute breaks every 1-2 hours, and would miss work 2 to 3 times per month. (Id. at 9.) The administrative law judge (“ALJ”) found that Plaintiff had the medically determinable impairments of degenerative disc disease, multiple sclerosis, and essential hypertension but did not have a severe impairment or combination of impairments from her alleged onset date of September 1, 2012 through the expiration of her Title II insured status on December 31, 2014. (Id. at 10.) Plaintiff argued that “the ALJ applied an incorrect severity standard” and that the record “does not provide substantial evidence to support the ALJ's finding that [Plaintiff's] medically determinable impairments were no more than ‘a slight abnormality' that had ‘no more than a minimal effect' on her ability to work.” (Id. at 12.) Plaintiff further argued that the ALJ erred by failing to even mention the opinion of treating physician Dr. Keole. (Id. at 21-23.)

         Defendant's response brief was due on February 25, 2019. Defendant missed this deadline.

         On February 27, 2019, Defendant filed a motion for extension of time to file a response brief. (Doc. 15.) Defendant's motion itself did not indicate that the deadline had lapsed. In a separately-filed declaration, Defendant's attorney acknowledged the lapsed deadline, declared that he had missed the deadline “[d]ue to a calendaring error, ” and apologized to the Court for the error. (Doc. 16 ¶ 2.) Both the motion and the declaration indicated that Plaintiff did not oppose the untimely request for an extension of time. (Doc. 15 at 1; Doc. 16 ¶ 4.) Defendant's deadline was extended to March 25, 2019.

         On March 25, 2019, the parties filed a stipulation agreeing that the case should be reversed and remanded. (Doc. 18 at 1.) The parties further stipulated that “[u]pon proper presentation, this Court will consider Plaintiff's application for costs and attorneys' fees under 28 U.S.C. § 2412(d).” (Id. at 2.) The following day, the Court granted the stipulation (Doc. 19) and the Clerk of Court entered judgment (Doc. 20).

         Plaintiff's application for costs and fees was due on June 24, 2019. (Doc. 24 at 3.) On June 27, three days after the deadline elapsed, Plaintiff filed a motion for extension of time. (Doc. 21.) Plaintiff attached her attorney's declaration, which stated the deadline had been missed due to a calendaring error. (Doc. 21-2 ¶ 5.) Plaintiff's attorney further declared that “Plaintiff, in early June, began her attempts to communicate with Defendant regarding the possibility of filing an unopposed EAJA motion but has not received a response to any of her attempts to communicate.” (Id. ¶ 7.) Plaintiff's attorney also declared that “Plaintiff has also attempted to contact Defendant regarding the instant motion but has not received a response.” (Id. ¶ 8.) Finally, Plaintiff requested an extension of time to July 12, 2019.

         On June 27, 2019, the Court issued an order applying the excusable-neglect factors outlined in Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 365 (1993), and determining that (1) the three-day delay was “minimal, ” (2) there was “little to no danger of prejudice to Defendant, ” (3) “calendaring errors can constitute excusable neglect, ” and (4) there was “no evidence of bad faith.” (Doc. 22 at 2.) The Court therefore granted the motion and extended Plaintiff's deadline for filing her fee motion to July 12, 2019. (Id.)

         On July 8, 2019-four days before the July 12 deadline-Plaintiff filed the pending EAJA attorneys' fees motion. (Doc. 23.) Plaintiff sought “an award of $8250 in EAJA fees reflecting 40 hours of work by the attorneys in this case and costs in the amount of $400 for the federal court filing fees . . . .” (Id. at 2.) Plaintiff's supporting memorandum asserted that “Plaintiff's counsel has expended in excess of 40 hours in presenting this matter” (Doc. 23-2 at 3) but that Plaintiff's counsel seeks fees for only 40 hours of work (id. at 3 n.1). Plaintiff attached an affidavit from her attorney averring that 45 hours of attorney time and 11 hours of paralegal time were spent on this matter, but the paralegal time and 5 hours of the attorney time were “not being billed in furtherance of exercising billing judgment.” (Doc. 23-3 ¶¶ 16-17.) Plaintiff's counsel stated that the adjusted maximum rate in 2019 was $206.25 per hour billed. (Doc. 23-3 ¶ 12.)

         Plaintiff also attached a statement of consultation that stated:

[T]he undersigned sent an initial email to defense counsel of record . . . on June 10, 2019, attaching a draft itemization of time and an offer of settlement of fees with in invitation to discuss resolving any issues in this matter. No. response was received and the undersigned emailed [defense counsel] a second time on June 17, 2019. Emails were sent again to [defense counsel] on June 26th, and July 5th and no response was received. The undersigned also called [defense counsel] on July 1st and left a detailed voicemail explaining that multiple emails were sent to no avail and that ...

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