Kender v. Social Security Administration
Court Docket Sheet

Eastern District of Arkansas

3:2016-cv-00126 (ared)

ORDER the ALJ's decision is reversed and remanded with instructions to further develop the record as necessary and to give explicit consideration to the VA determination. Signed by Magistrate Judge J. Thomas Ray on 5/18/17.

Case 3:16-cv-00126-JTR Document 13 Filed 05/18/17 Page 1 of 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION SHANNON WAYNE KENDER PLAINTIFF v. No. 3:16-CV-00126-JTR NANCY A. BERRYHILL, 1 Acting Commissioner, Social Security Administration DEFENDANT ORDER REMANDING TO THE COMMISSIONER Shannon Kender ("Kender") applied for social security disability benefits with an alleged disability onset date of January 24, 2014. (R. at 64). After conducting a hearing, the administrative law judge ("ALJ") denied Kender’s application. (R. at 21). The Appeals Council later denied Kender’s request for review (R. at 1), making the ALJ’s decision the final decision of the Commissioner. Kender has requested judicial review.2 For the reasons stated below, this Court reverses and remands the Commissioner’s decision. 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is automatically substituted as Defendant pursuant to Fed. R. Civ. P. 25(d). 2 The parties have consented in writing to the jurisdiction of a United States Magistrate Judge. 1 Case 3:16-cv-00126-JTR Document 13 Filed 05/18/17 Page 2 of 7 I. The Commissioner’s Decision The ALJ found that Kender had the severe impairments of degenerative disk disease, degenerative joint disease, right-sided carpal tunnel syndrome, and post-traumatic stress disorder. (R. at 12). Based on his limitations, the ALJ determined that Kender had the residual functional capacity ("RFC") to perform sedentary work, with the following additional limitations: can never climb ladders, ropes, or scaffolding; can only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, or crawl; requires a sit/stand option, throughout the workday, that allows him to stand after sitting for 20 minutes; is limited to frequent use of his dominant right hand to perform handling and fingering; and is limited to simple, routine, and repetitive tasks. (R. at 14–15). Because this RFC precluded Kender’s past relevant work (R. at 19), the ALJ considered testimony from a vocational expert who testified that Kender’s RFC would allow him to perform other jobs in the national economy, such as surveillance monitor. (R. at 20). Thus, the ALJ held that Kender was not disabled. (R. at 21). II. Discussion The Court’s function on review is to determine whether the Commissioner’s decision is supported by substantial evidence on the record as a whole and whether it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also 42 U.S.C. § 405(g). While "substantial evidence" is that which a reasonable 2 Case 3:16-cv-00126-JTR Document 13 Filed 05/18/17 Page 3 of 7 mind might accept as adequate to support a conclusion, "substantial evidence on the record as a whole" requires a court to engage in a more scrutinizing analysis: "[O]ur review is more than an examination of the record for the existence of substantial evidence in support of the Commissioner’s decision; we also take into account whatever in the record fairly detracts from that decision." Reversal is not warranted, however, "merely because substantial evidence would have supported an opposite decision." Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted). Kender argues that the ALJ failed to properly consider a Veterans Administration ("VA") disability determination. He also contends that the ALJ’s credibility analysis was improper. Because the Court concludes the ALJ erred in failing to properly evaluate the VA disability determination, it need not consider Kender’s other arguments for reversal. On February 14, 2013, the VA issued a "Rating Decision," finding that Kender was 70% disabled due to post-traumatic stress disorder, disc herniation and degenerative disc disease, left and right lower extremity radiculopathy associated with the herniation, left and right knee strain, and tinnitus. (R. at 408-12). The VA disability determination was based on medical records, primarily VA examination and treatment reports, from 2007 through December 2012. (R. at 408-09). In his decision, the ALJ mentioned the VA disability rating only twice: (1) noting that "the record shows that [Kender] has been awarded a rating of disability 3 Case 3:16-cv-00126-JTR Document 13 Filed 05/18/17 Page 4 of 7 based on his PTSD" (R. at 16); and (2) stating that a consulting physician, Roger Troxel, M.D., "noted that the claimant had a 70% [VA] disability rating for PTSD, osteoarthritis for both knees, herniated disc of the lumber spine, and tinnitus" (R. at 18). An ALJ is not bound by the disability rating of another governmental agency when evaluating whether a claimant is disabled for purposes of social security benefits. 20 C.F.R. § 404.1504. However, a VA disability rating "is entitled to some weight and must be considered by the ALJ." Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998). In Morrison, the Eighth Circuit held that, if the ALJ rejects a VA disability determination, he must explicitly do so and "reasons should [be] given, to enable a reasoned review by the courts." Id. This was particularly important in Morrison because the 100% disability rating was based on "an extensive physical examination documenting [the claimant’s] medical problems" and was supported by 30 pages of records. Id. In addition, the SSA has recognized that disability decisions by other agencies, and the evidence used to make those decisions, "may provide insight" into an individual’s impairments and level of functioning. SSR 06-03p, 2006 WL 2263437 (Aug. 9, 2006). Thus, the SSA has specifically instructed its ALJs to "explain the consideration given to these decisions in the notice of decision." Id. 4 Case 3:16-cv-00126-JTR Document 13 Filed 05/18/17 Page 5 of 7 Finally, the Eighth Circuit has held, in several cases, that the ALJ’s failure to mention another agency’s disability determination does not amount to reversible error if the ALJ discusses and discredits the medical evidence underlying the agency’s rating. Baker v. Colvin, 620 F. App’x 550, 555-56 (8th Cir. 2015); Pelkey v. Barnhart, 433 F.3d 575, 579-80 (8th Cir. 2006).3 In this case, while the ALJ acknowledged the VA disability rating in passing, he did not state what weight, if any, he assigned to the disability determination, he did not provide any reasons for rejecting the determination, and he did not discuss any of the underlying medical evidence.4 The Commissioner argues that "no error can possibly arise" from the ALJ’s failure to evaluate the VA disability rating because the VA determination was made before Kender’s alleged onset date and he worked after the VA determination. Doc. 12, at 4. Importantly, the ALJ made no mention of these considerations, and nothing 3 The Court notes that the SSA has recently changed its policy, effective March 27, 2017, to require ALJs to "consider all of the supporting evidence underlying" another agency’s disability determination, but eliminating any requirement for the ALJ to discuss the prior determination itself. 20 C.F.R. § 404.1504 (2017) ("[I]n claims filed … on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits."). 4 With the exception of one radiology report, the only VA records submitted were for treatment Kender received after the February 14, 2013 disability determination. (R. at 288-339, 448.) In the administrative hearing, the ALJ questioned Kender about the VA disability rating, noted that no underlying records had been provided, and acknowledged that such records are often difficult to obtain. (R. at 44-45, 58-59, 62). 5 Case 3:16-cv-00126-JTR Document 13 Filed 05/18/17 Page 6 of 7 in his decision suggests he was even aware of those facts, much less that he used them as the basis for rejecting the VA disability determination. As the Eighth Circuit has noted, this Court cannot uphold an ALJ’s decision for reasons not articulated by the ALJ. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001); see also Haga v. Astrue, 482 F.3d 1205, 1207-08 (10th Cir. 2007) (a reviewing court "may not create or adopt post hoc rationalizations to support the ALJ’s decision that are not apparent from the ALJ’s decision itself"). This Court cannot reweigh the scant available evidence on an issue that the ALJ did not consider or otherwise mention in his decision and conclude, based on that reweighing, that the ALJ’s error was harmless. Because ALJ did not properly evaluate the VA disability determination in concluding that Kinder was not disabled, this case must be reversed and remanded. III. Conclusion It is not the task of this Court to review the evidence and make an independent decision. Neither is it to reverse the decision of the ALJ because there is evidence in the record which contradicts his findings. The test is whether there is substantial evidence in the record as a whole which supports the decision of the ALJ. Miller, 784 F.3d at 477. The Court has reviewed the entire record, including the briefs, the ALJ's decision, and the transcript of the hearing. The Court concludes that the record as a whole does not contain ample evidence that "a reasonable mind might accept as 6 Case 3:16-cv-00126-JTR Document 13 Filed 05/18/17 Page 7 of 7 adequate to support [the] conclusion" of the ALJ in this case. Richardson v. Perales, 402 U.S. 389, 401 (1971). IT IS THEREFORE ORDERED that the ALJ’s decision be, and it hereby is, REVERSED and REMANDED, with instructions to further develop the record as necessary and to give explicit consideration to the VA determination. It is so ordered this 18th day of May, 2017. ____________________________________ UNITED STATES MAGISTRATE JUDGE 7

JUDGMENT pursuant to the Order entered on this date it is ordered that the final decision of the Commissioner is reversed and this case is remanded for proceedings specified in the Court's Order [13]. Signed by Magistrate Judge J. Thomas Ray on 5/18/17.

Case 3:16-cv-00126-JTR Document 14 Filed 05/18/17 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION SHANNON WAYNE KENDER PLAINTIFF v. No. 3:16-CV-00126-JTR NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT JUDGMENT Pursuant to the order entered in this case on this date, it is CONSIDERED, ORDERED, and ADJUDGED that the final decision of Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, is REVERSED, and this case is REMANDED for proceedings specified in the Court’s order. So ordered this 18th day of May 2017. ____________________________________ UNITED STATES MAGISTRATE JUDGE 1

First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Shannon Wayne Kender

Case 3:16-cv-00126-JTR Document 15 Filed 08/14/17 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION __________________________________ SHANNON WAYNE KENDER, Plaintiff, 3:16-cv-00126-JTR v. Notice of Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ COUNSEL: PLEASE TAKE NOTICE that upon the annexed affirmation of Howard D. Olinsky, attorney for the plaintiff, and other papers, the plaintiff will make a motion before the Court on a date to be set by the court, for an order: 1. Awarding an Equal Access to Justice Act Counsel Fee for $6,526.61; and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney; and 3. Awarding expenses in the amount of $55.18. Plaintiffs attorney, Howard D. Olinsky, moves the court for an award to be paid by the Defendant under the Equal Access to Justice Act, 28 USCS § 2412. There are no special circumstances in this case which make an award under the EAJA unjust. Case 3:16-cv-00126-JTR Document 15 Filed 08/14/17 Page 2 of 2 This motion is supported by an affirmation of Plaintiffs attorney, attached time and cost records and a Waiver of Direct Payment by the plaintiff. Executed this August 14, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Counsel for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, NY 13202 Telephone: 315-701-5780 Facsimile: 315-701-5781 Email: fedct@windisability.com To: Mark J. Mendola, Esq. Special Assistant U.S. Attorney Eastern District of Arkansas Massachusetts Bar No. 671052 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202 Phone: 214-767-4706 Fax: 214-767-4228 Email: Mark.mendola@ssa.gov

AFFIDAVIT in Support re [15] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Shannon Wayne Kender.

Case 3:16-cv-00126-JTR Document 16 Filed 08/14/17 Page 1 of 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION __________________________________ SHANNON WAYNE KENDER, Plaintiff, 3:16-cv-00126-JTR Attorney’s Affirmation v. in Support of Motion for EAJA Fees CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ STATE OF NEW YORK) COUNTY OF ONONDAGA) ss: Howard D. Olinsky, hereby affirms and states: 1. I am Plaintiff’s attorney in this action. 2. I make this affirmation knowing that the Court will rely upon it assessing any awards under the Equal Access to Justice Act disposed of under 28 USCS § 2412. 3. There are no special circumstances in this case which make an award under the EAJA unjust. 4. The Court ordered that this case be remanded for further administrative proceedings, under the fourth sentence of 42 U.S.C. § 405(g). 5. Plaintiff is a party whose net assets are worth less than two million dollars. 6. It is alleged that the Government’s position in litigation was "not substantially justified. 7. A judgment has been entered and has not or will not be appealed. Case 3:16-cv-00126-JTR Document 16 Filed 08/14/17 Page 2 of 4 HOURLY RATE REQUESTED 8. The statutory EAJA fee in March 1996 was $125.00 per hour. However, there has been an increase in the cost of living since the amendment to the EAJA took effect on March 29, 1996. Cost of living increase is specifically mentioned in the EAJA as a factor justifying a fee greater than $125.00 per hour. 28 USCS § 2412 (d)(2)(A)(ii). According to the Consumer Price Index for this region as reported by the Bureau of Labor Statistics (Exhibit A), there has been an increase in the cost of living from March 29, 1996 to the present. Applying this cost of living increase to $125.00 per hour yields an attorney’s hourly rate identified in the chart below for work using the second half of 2016 figures. Atty CPI increase $191.86 Atty hours 29.9 $5,736.61 Paralegal rate $100.00 Paralegal hours 7.9 $790.00 Total EAJA request $6,526.61 TIME/COST ACCOUNTING 9. The time accounting is presented to the court in two fashions. Exhibit B is the time spent by all who worked on this case in chronological sequence. Exhibit C lists the attorneys and their time and Exhibit D lists the paralegals and their time. 10. I am requesting reimbursement of expenses of $16.62 for Certified Summons & Complaint to the Defendant’s offices and $38.56 for the Federal Expressing of the initial case documents to the Clerk, for a total of $55.18 in expenses shown on Exhibit E. 11. All services on this case were rendered by your affiant and my professional staff, unless specifically noted otherwise. The attached records were contemporaneously created and Case 3:16-cv-00126-JTR Document 16 Filed 08/14/17 Page 3 of 4 stored in the firms Prevail Database, and are printed out and attached. The itemized time represents hours spent preparing and handling this case for U.S. District Court. Clerical time is not included in this petition or has been zeroed out. Waiver of Direct Payment of EAJA Fees 12. Attached as Exhibit F is a Waiver of Direct Payment duly executed by the plaintiff. With this Waiver, if Plaintiff owes a debt that qualifies under the Treasury Offset Program (31 USCS § 3716), any payment shall be made payable to the Plaintiff and delivered to the Plaintiff’s attorney. If the United States Department of Treasury determines that Plaintiff owes no debt that is subject to offset, the government may accept the assignment of EAJA fees and pay such fees directly to the Plaintiff’s attorney. Astrue v. Ratliff, 560 U.S. 586, 130 S. Ct. 2521 (2010). WHEREFORE, because all four elements of an allowable application for EAJA fees have been proven or alleged, petitioner humbly prays that the Court issue an order: 1. Awarding attorney’s fees of $6,526.61 under the Equal Access to Justice Act; and 2. If the Plaintiff has no debt registered with the Department of Treasury subject to offset that the fees be made payable to the attorney; and 3. Awarding expenses in the amount of $55.18. Executed August 14, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Counsel for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Case 3:16-cv-00126-JTR Document 16 Filed 08/14/17 Page 4 of 4 Syracuse, NY 13202 Telephone: 315-701-5780 Facsimile: 315-701-5781 Email: fedct@windisability.com To: Mark J. Mendola, Esq. Special Assistant U.S. Attorney Eastern District of Arkansas Massachusetts Bar No. 671052 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202 Phone: 214-767-4706 Fax: 214-767-4228 Email: Mark.mendola@ssa.gov

Exhibit A CPI Table

Exhibit A Case 3:16-cv-00126-JTR Document 16-1 Filed 08/14/17 Page 2 of 3 Second Half of 2016 CPI Calculation EAJA CALCULATION TABLES – INFLATION SINCE 1996 In March 1996 when EAJA was enacted, the consumer price index for the South was 152.4. The original maximum EAJA rate was $125 per hour. 28 U.S.C. §2412(d)(2)(A)(ii). 2016 In the Second Half of 2016, the Average Consumer Price Index was 233.915 Therefore, Original EAJA Rate (x)2016 EAJA Rate ________________ = _____________ March 1996 CPI 2016 CPI $125.00 x _________ = __________ 152.4 233.915 2016 EAJA Rate = $191.86 per hour Source: Consumer Price Index – South Urban – All Urban Consumers, Bureau of Labor Statistics, U.S. Department of Labor, available at http://Data.bls.gov (last visited March 16, 2017) Bureau of Labor Statistics Data https://data.bls.gov/pdq/SurveyOutputServlet Case 3:16-cv-00126-JTR Document 16-1 Filed 08/14/17 Page 3 of 3 A to Z Index FAQs About BLS Contact Us Subscribe to E-mail Updates Follow Us What's New Release Calendar Blog Search BLS.gov Home Subjects Data Tools Publications Economic Releases Students Beta SHARE ON: FONT SIZE: Change Output Options: From: To: include graphs include annual averages Data extracted on: March 16, 2017 (9:26:55 AM) Consumer Price Index-All Urban Consumers Series Id: CUUR0300SA0 Not Seasonally Adjusted Area: South urban Item: All items Base Period: 1982-84=100 Download: Year Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Annual HALF1 HALF2 1996 151.1 151.5 152.4 153.2 153.5 154.0 154.0 154.1 154.5 154.9 155.1 155.1 153.6 152.6 154.6 1997 155.7 156.1 156.5 156.7 156.6 157.0 157.0 157.1 157.5 157.8 157.8 157.3 156.9 156.4 157.4 1998 157.6 157.8 158.2 158.5 158.8 159.1 159.3 159.5 159.5 159.8 159.6 159.6 158.9 158.3 159.6 1999 159.9 160.0 160.6 161.5 161.6 161.7 162.2 162.6 163.2 163.6 163.5 163.6 162.0 160.9 163.1 2000 164.1 164.8 166.5 166.7 166.7 167.5 168.0 168.0 168.5 168.5 168.6 168.4 167.2 166.1 168.3 2001 169.3 170.2 170.6 171.4 171.7 172.2 171.6 171.5 172.2 171.7 171.0 170.3 171.1 170.9 171.4 2002 170.6 171.0 172.1 173.1 173.2 173.5 173.6 173.8 174.2 174.9 174.9 174.6 173.3 172.3 174.3 2003 175.1 176.4 177.5 177.4 176.8 177.2 177.3 177.9 178.3 178.1 177.5 177.5 177.3 176.7 177.8 2004 178.2 179.1 180.1 180.9 182.0 182.9 182.6 182.6 182.8 183.7 183.7 183.3 181.8 180.5 183.1 2005 183.6 184.7 185.9 187.3 187.3 187.8 188.5 189.4 192.0 192.5 190.7 190.1 188.3 186.1 190.5 2006 191.5 191.8 192.8 194.7 195.5 196.3 197.0 197.1 195.8 194.7 194.3 194.8 194.7 193.8 195.6 2007 195.021 195.950 197.904 199.618 200.804 201.675 201.571 201.041 201.697 202.155 203.437 203.457 200.361 198.495 202.226 2008 204.510 205.060 206.676 208.085 210.006 212.324 213.304 212.387 212.650 210.108 205.559 203.501 208.681 207.777 209.585 2009 204.288 205.343 206.001 206.657 207.265 209.343 208.819 209.000 208.912 209.292 209.738 209.476 207.845 206.483 209.206 2010 210.056 210.020 211.216 211.528 211.423 211.232 210.988 211.308 211.775 212.026 211.996 212.488 211.338 210.913 211.764 2011 213.589 214.735 217.214 218.820 219.820 219.318 219.682 220.471 220.371 219.969 219.961 219.469 218.618 217.249 219.987 2012 220.497 221.802 223.314 224.275 223.356 223.004 222.667 223.919 225.052 224.504 223.404 223.109 223.242 222.708 223.776 2013 223.933 225.874 226.628 226.202 226.289 227.148 227.548 227.837 227.876 227.420 226.811 227.082 226.721 226.012 227.429 2014 227.673 228.664 230.095 231.346 231.762 232.269 232.013 231.611 231.762 231.131 229.845 228.451 230.552 230.302 230.802 2015 226.855 227.944 229.337 229.957 230.886 232.026 231.719 231.260 230.913 230.860 230.422 229.581 230.147 229.501 230.793 2016 229.469 229.646 230.977 231.975 232.906 233.838 233.292 233.561 234.069 234.337 234.029 234.204 232.692 231.469 233.915 2017 235.492 236.052 RECOMMEND THIS PAGE USING: Facebook Twitter LinkedIn TOOLS CALCULATORS HELP INFO RESOURCES Areas at a Glance Inflation Help & Tutorials What's New Inspector General (OIG) Industries at a Glance Location Quotient FAQs Careers@BLS Budget and Performance Economic Releases Injury And Illness Glossary Find It! DOL No Fear Act Databases & Tables About BLS Join our Mailing Lists USA.gov Maps Contact Us Linking & Copyright Info Benefits.gov Disability.gov Freedom of Information Act Privacy & Security Statement Disclaimers Customer Survey Important Web Site Notices U.S. Bureau of Labor Statistics Postal Square Building, 2 Massachusetts Avenue, NE Washington, DC 20212-0001 www.bls.gov Telephone: 1-202-691-5200 TDD: 1-800-877-8339 Contact Us 1 of 1 3/16/2017 9:35 AM

Exhibit B All Professional Time

Exhibit B Case 3:16-cv-00126-JTR Document 16-2 Filed 08/14/17 Page 2 of 3 Ledger Kender, Shannon Wayne Date  Subject Hours Timekeeper 3/15/2016 Files received and processed from Referral Source for Attorney review 0.6 Callahan, Michelle 3/15/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Callahan, Michelle 4/12/2016 Telephone call to Client re: Attempt debt check-no VM or way to leave message 0 Callahan, Michelle 5/4/2016 Telephone call to Client re: Attempt debt check-no VM or way to leave message 0 Callahan, Michelle 5/4/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 5/5/2016 Telephone call to Client re: Acceptance of case and forms-no answer/no VM 0 Callahan, Michelle 5/5/2016 Emails with Referral source re: request for additional contact infomation 0.2 Callahan, Michelle 5/5/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 5/6/2016 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 5/6/2016 Telephone call with Client re: Assistance with in Forma Pauperis application 0.4 Callahan, Michelle 5/6/2016 FDC Prospect packet sent via Right Signature 0.2 Callahan, Michelle 5/6/2016 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 5/11/2016 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 5/11/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Olinsky, Howard D. 5/11/2016 Federal Express Case initiating documents to the clerk for docketing 0 Smith, Michael P. 5/13/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 5/13/2016 Download, file, save and distribute ECF re: Motion for leave in forma pauperis 0 Lockwood, Tamica 5/13/2016 Download, file, save and distribute ECF re: Complaint 0 Lockwood, Tamica 7/8/2016 Download, file, save and distribute ECF re: Summons issued (notice only) 0 Lockwood, Tamica 7/8/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 7/8/2016 Download, file, save and distribute ECF re: Order granting IFP application 0 Lockwood, Tamica 7/8/2016 Review Order granting motion for leave to proceed in forma pauperis 0.1 Olinsky, Howard D. 7/18/2016 Received and processed Issued Summons via USPS 0 Callahan, Michelle 7/18/2016 Review Summons Issued, Notice of Magistrate consent by USAO (standing order) 0.3 Eaglin, Paul B. 7/25/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/28/2016 Review and execute consent to Magistrate jurisdiction 0.1 Eaglin, Paul B. 7/28/2016 Mail executed magistrate consent for to Clerk for docketing 0.1 Callahan, Michelle 8/1/2016 Download, file, save electronic return receipt US Attorney's office 0 Callahan, Michelle 8/5/2016 Emails with Office of General Counsel re: Service confirmation 0.1 Callahan, Michelle 8/8/2016 Download, file, save electronic return receipt Attorney General 0 Callahan, Michelle 8/8/2016 Download, file, save and distribute ECF re: Consent to jurisdiction by US Mag. 0 Lockwood, Tamica 8/8/2016 Review Consent to US Magistrate, case reassigned Judge Ray, research inv. rules 0.3 Eaglin, Paul B. 8/17/2016 Combine and file proof of service via CM/ECF USAO, OGC, AG 0.3 Callahan, Michelle 8/17/2016 Download, file, save and distribute ECF re: Summons returned executed 0 Lockwood, Tamica 8/26/2016 Download, file, save and distribute ECF re: NOA Eric B. Tucker 0 Lockwood, Tamica 8/26/2016 Review Notice of appearance Eric B. Tucker o/b/o SS Administration 0.1 Eaglin, Paul B. 9/28/2016 Download, file, save and distribute ECF re: Answer to complaint 0 Lockwood, Tamica 9/28/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 9/28/2016 Download, file, save and distribute ECF re: Notice by SS Administration 0 Lockwood, Tamica 9/28/2016 Review notice by SSA conventional filing of administrative record 0.1 Eaglin, Paul B. 29.90 (Type = Time)    Case 3:16-cv-00126-JTR Document 16-2 Filed 08/14/17 Page 3 of 3 Date  Subject Hours Timekeeper 9/28/2016 Download, file, save and distribute ECF re: Admin record received paper format 0 Lockwood, Tamica 9/28/2016 Review Notice of CAR received in paper format at Clerk's office 0.1 Eaglin, Paul B. 9/28/2016 Download, file, save and distribute ECF re: Scheduling order 0 Lockwood, Tamica 9/28/2016 Review scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 10/4/2016 CAR received via CD, emails with Opposing Counsel for password 0.2 Callahan, Michelle 10/4/2016 Download, file and save transcript from CD, OCR and live bookmark (466 pgs) 0.5 Callahan, Michelle 10/5/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 11/7/2016 Review certified administrative record, take notes and organize facts (466 pgs) 3.9 Fecio, Michelle 11/8/2016 Drafting procedural section, drafting facts 4.4 Fecio, Michelle 11/9/2016 Research issues and drafting argument 5.2 Fecio, Michelle 11/10/2016 Continue researching issues and drafting argument 2.1 Fecio, Michelle 11/10/2016 Senior Attorney review draft brief, suggest edits 0.6 Eaglin, Paul B. 11/10/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.6 Fecio, Michelle 11/10/2016 Download, file, save and distribute ECF re: Plaintiff's brief 0 Lockwood, Tamica 12/22/2016 Download, file, save and distribute ECF re: Defendant's brief 0 Lockwood, Tamica 12/22/2016 Review Defendant's brief (12 pages) 0.4 Eaglin, Paul B. 5/18/2017 Download, file, save and distribute ECF re: Order the ALJ's decision reversed 0 Lockwood, Tamica 5/18/2017 Review Order the ALJ's decision reversed and remaned (7 pages) 0.2 Olinsky, Howard D. 5/18/2017 Download, file, save and distribute ECF re: Judgment 0 Lockwood, Tamica 5/18/2017 Review Judgment pursuant to order remanding for further proceedings 0.1 Olinsky, Howard D. 5/19/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 5/19/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/25/2017 EAJA Preparation 1.5 Persse, Shannon 7/26/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 8/14/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 29.90 (Type = Time)   

Exhibit C Attorney Time

Exhibit C Case 3:16-cv-00126-JTR Document 16-3 Filed 08/14/17 Page 2 of 2 Ledger Kender, Shannon Wayne Date  Subject Hours Timekeeper 5/5/2016 Review decisions and evidence to determine whether to appeal case 1 Eaglin, Paul B. 5/11/2016 Review Motion to Proceed In Forma Pauperis, approve for filing 0.2 Olinsky, Howard D. 5/11/2016 Draft complaint, proposed summons, civil cover sheet, and letter to clerk 0.7 Olinsky, Howard D. 7/8/2016 Review Summons Issued (text notice only) 0.1 Eaglin, Paul B. 7/8/2016 Review Order granting motion for leave to proceed in forma pauperis 0.1 Olinsky, Howard D. 7/18/2016 Review Summons Issued, Notice of Magistrate consent by USAO (standing order) 0.3 Eaglin, Paul B. 7/28/2016 Review and execute consent to Magistrate jurisdiction 0.1 Eaglin, Paul B. 8/8/2016 Review Consent to US Magistrate, case reassigned Judge Ray, research inv. rules 0.3 Eaglin, Paul B. 8/26/2016 Review Notice of appearance Eric B. Tucker o/b/o SS Administration 0.1 Eaglin, Paul B. 9/28/2016 Review Answer to complaint 0.1 Eaglin, Paul B. 9/28/2016 Review notice by SSA conventional filing of administrative record 0.1 Eaglin, Paul B. 9/28/2016 Review Notice of CAR received in paper format at Clerk's office 0.1 Eaglin, Paul B. 9/28/2016 Review scheduling order, calendar deadlines on task pad 0.3 Eaglin, Paul B. 10/5/2016 Preliminary review of transcript-assign Attorney writer 0.5 Eaglin, Paul B. 11/7/2016 Review certified administrative record, take notes and organize facts (466 pgs) 3.9 Fecio, Michelle 11/8/2016 Drafting procedural section, drafting facts 4.4 Fecio, Michelle 11/9/2016 Research issues and drafting argument 5.2 Fecio, Michelle 11/10/2016 Continue researching issues and drafting argument 2.1 Fecio, Michelle 11/10/2016 Senior Attorney review draft brief, suggest edits 0.6 Eaglin, Paul B. 11/10/2016 Implement suggested edits, finalize and file brief (n/c for filing) 0.6 Fecio, Michelle 12/22/2016 Review Defendant's brief (12 pages) 0.4 Eaglin, Paul B. 5/18/2017 Review Order the ALJ's decision reversed and remaned (7 pages) 0.2 Olinsky, Howard D. 5/18/2017 Review Judgment pursuant to order remanding for further proceedings 0.1 Olinsky, Howard D. 7/26/2017 Review Timeslips Finalize EAJA Motion 0.5 Olinsky, Howard D. 22.00 (Type = Time) and ((Timekeeper = Eaglin, Paul B.) or (Timekeeper = Fecio, Michelle) or (Timekeeper = Olinsky, Howard D.))   

Exhibit D Paralegal Time

Exhibit D Case 3:16-cv-00126-JTR Document 16-4 Filed 08/14/17 Page 2 of 3 Ledger Kender, Shannon Wayne Date  Subject Hours Timekeeper 3/15/2016 Files received and processed from Referral Source for Attorney review 0.6 Callahan, Michelle 3/15/2016 Correspondence to Client re: Referral acknowledgment letter 0.2 Callahan, Michelle 4/12/2016 Telephone call to Client re: Attempt debt check-no VM or way to leave message 0 Callahan, Michelle 5/4/2016 Telephone call to Client re: Attempt debt check-no VM or way to leave message 0 Callahan, Michelle 5/4/2016 Telephone call with Client re: Debt conference call, explained process 0.4 Callahan, Michelle 5/5/2016 Telephone call to Client re: Acceptance of case and forms-no answer/no VM 0 Callahan, Michelle 5/5/2016 Emails with Referral source re: request for additional contact infomation 0.2 Callahan, Michelle 5/6/2016 FDC prospect packet prepared for Client completion 0.6 Callahan, Michelle 5/6/2016 Telephone call with Client re: Assistance with in Forma Pauperis application 0.4 Callahan, Michelle 5/6/2016 FDC Prospect packet sent via Right Signature 0.2 Callahan, Michelle 5/6/2016 FDC Prospect packet returned via Right Signature, reviewed for completion 0.3 Callahan, Michelle 5/11/2016 Federal Express Case initiating documents to the clerk for docketing 0 Smith, Michael P. 5/13/2016 Federal Court-Accept Letter-New FDC Filing 0.3 Smith, Michael P. 5/13/2016 Download, file, save and distribute ECF re: Motion for leave in forma pauperis 0 Lockwood, Tamica 5/13/2016 Download, file, save and distribute ECF re: Complaint 0 Lockwood, Tamica 7/8/2016 Download, file, save and distribute ECF re: Summons issued (notice only) 0 Lockwood, Tamica 7/8/2016 Download, file, save and distribute ECF re: Order granting IFP application 0 Lockwood, Tamica 7/18/2016 Received and processed Issued Summons via USPS 0 Callahan, Michelle 7/25/2016 Federal Court-Service of Process-Prepare Service packets USAO, OGC, AG 0.6 Callahan, Michelle 7/28/2016 Mail executed magistrate consent for to Clerk for docketing 0.1 Callahan, Michelle 8/1/2016 Download, file, save electronic return receipt US Attorney's office 0 Callahan, Michelle 8/5/2016 Emails with Office of General Counsel re: Service confirmation 0.1 Callahan, Michelle 8/8/2016 Download, file, save electronic return receipt Attorney General 0 Callahan, Michelle 8/8/2016 Download, file, save and distribute ECF re: Consent to jurisdiction by US Mag. 0 Lockwood, Tamica 8/17/2016 Combine and file proof of service via CM/ECF USAO, OGC, AG 0.3 Callahan, Michelle 8/17/2016 Download, file, save and distribute ECF re: Summons returned executed 0 Lockwood, Tamica 8/26/2016 Download, file, save and distribute ECF re: NOA Eric B. Tucker 0 Lockwood, Tamica 9/28/2016 Download, file, save and distribute ECF re: Answer to complaint 0 Lockwood, Tamica 9/28/2016 Download, file, save and distribute ECF re: Notice by SS Administration 0 Lockwood, Tamica 9/28/2016 Download, file, save and distribute ECF re: Admin record received paper format 0 Lockwood, Tamica 9/28/2016 Download, file, save and distribute ECF re: Scheduling order 0 Lockwood, Tamica 10/4/2016 CAR received via CD, emails with Opposing Counsel for password 0.2 Callahan, Michelle 10/4/2016 Download, file and save transcript from CD, OCR and live bookmark (466 pgs) 0.5 Callahan, Michelle 11/10/2016 Download, file, save and distribute ECF re: Plaintiff's brief 0 Lockwood, Tamica 12/22/2016 Download, file, save and distribute ECF re: Defendant's brief 0 Lockwood, Tamica 5/18/2017 Download, file, save and distribute ECF re: Order the ALJ's decision reversed 0 Lockwood, Tamica 5/18/2017 Download, file, save and distribute ECF re: Judgment 0 Lockwood, Tamica 5/19/2017 Correspondence to Client re: FDC Remand 0.2 Callahan, Michelle 5/19/2017 Federal Court-Remand Referral back to Referral Source 0.3 Callahan, Michelle 7/25/2017 EAJA Preparation 1.5 Persse, Shannon 7.90 (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Lockwood, Tamica) or (Timekeeper = Persse, Shannon)...    Case 3:16-cv-00126-JTR Document 16-4 Filed 08/14/17 Page 3 of 3 Date  Subject Hours Timekeeper 8/14/2017 Ready EAJA Narrative, Time Records, Exhibits, Certificate. File per Local Rule 0.9 Persse, Shannon 7.90 (Type = Time) and ((Timekeeper = Callahan, Michelle) or (Timekeeper = Lockwood, Tamica) or (Timekeeper = Persse, Shannon)...   

Exhibit E Expenses

Exhibit E Case 3:16-cv-00126-JTR Document 16-5 Filed 08/14/17 Page 2 of 2 Ledger Kender, Shannon Wayne Date  Subject Amount Timekeeper 5/11/2016 Federal Express expense for initial case documents to clerk $38.56 Smith, Michael P. 7/25/2016 Certified Mail Expense Summons and Complaint packets to Defendant's offices $16.62 Callahan, Michelle $55.18 $55.18 (Type = Cost)   

Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees

Exhibit F Case 3:16-cv-00126-JTR Document 16-6 Filed 08/14/17 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS (JONESBORO DIVISION)--------------------------------------------------------------MR. SHANNON WAYNE KENDER, AFFIRMATION AND WAIVER OF DIRECT PAYMENT Plaintiff, OF EAJA FEES v. Civil Action No.: _________________ CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.---------------------------------------------------------------Mr. Shannon Wayne Kender, hereby states the following: 1. I am the Plaintiff in the above-captioned matter. 2. That I have retained Olinsky Law Group as my attorney for the above-captioned matter. 3. At the time that this action was begun, my net worth was less than $2,000,000.00. 4. If my case is remanded by the Federal Court, either by stipulation or order, my attorney may file for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA). I understand that the EAJA fees are paid by the Federal Government and do not come from any back benefits owed to me by the Social Security Administration. 5. I hereby agree to waive direct payment of the EAJA fees and assign said fees to be paid directly to my attorney. 6. I understand that my attorney may still petition the Administration for legal fees for his or her work before the Administration that will be paid from my back benefits. As the Plaintiff in this case, I hereby declare and affirm under penalty of perjury that the information above is true and correct. Executed on May 6, 2016. __________________________ Mr. Shannon Wayne Kender Plaintiff

Memorandum In Support

Case 3:16-cv-00126-JTR Document 16-7 Filed 08/14/17 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION __________________________________ SHANNON WAYNE KENDER, Plaintiff, 3:16-cv-00126-JTR v. Memorandum In Support of Plaintiff’s Petition for Counsel Fee Allowance Under Equal Access to Justice Act CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ This is a memorandum in support of a petition for an award of Counsel Fees under the Equal Access to Justice Act, 28 USCS § 2412 "EAJA." An EAJA award is available to a "prevailing party" in a case against the Federal Government, including Social Security cases, in the following instances: (a) When and if the plaintiff actually "prevails"; (b) The Government’s position in litigation is "not substantially justified"; (c) Plaintiff is a party whose net assets are worth less than two million dollars; and (d) The case has concluded with a "final order" which is non-appealable, or will not be appealed. Addressing these elements in reverse order, it is clear that the Plaintiff has met the burden necessary to receive EAJA fees. Plaintiff’s net worth did not exceed $2,000,000.00 when this action was filed. After service of the summons and complaint this Court entered an Order Case 3:16-cv-00126-JTR Document 16-7 Filed 08/14/17 Page 2 of 3 remanding this matter back to the Commissioner for further administrative proceedings pursuant to Sentence four of 42 U.S.C. § 405(g). Judgment was entered and has not been appealed. Plaintiff has prevailed because the District Court remanded the case under sentence four of 42 U.S.C. § 405(g). Shalala v. Schaefer, 509 U.S. 292 (U.S. 1993). Finally, the Commissioner was not substantially justified. As the U. S. Supreme Court has held, "the required'not substantially justified’ allegation imposes no proof burden on the fee applicant. It is, as its text conveys, nothing more than an allegation or pleading requirement. The burden of establishing'that the position of the United States was substantially justified’ … must be shouldered by the Government." Scarborough v. Principi, 541 U.S. 401, 124 S. Ct. 1856 (2004) While the fee applicant such as Plaintiff is required to "show" three of the four elements—prevailing party status, financial eligibility, and amount sought—Plaintiff need only "to allege" that the position of the government is not substantially justified. Id. Executed August 14, 2017 Respectfully submitted,/s/Howard D. Olinsky Howard D. Olinsky, Esq. Counsel for Plaintiff Olinsky Law Group One Park Place 300 South State St., Suite 420 Syracuse, NY 13202 Telephone: 315-701-5780 Facsimile: 315-701-5781 Email: fedct@windisability.com To: Mark J. Mendola, Esq. Special Assistant U.S. Attorney Eastern District of Arkansas Case 3:16-cv-00126-JTR Document 16-7 Filed 08/14/17 Page 3 of 3 Massachusetts Bar No. 671052 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202 Phone: 214-767-4706 Fax: 214-767-4228 Email: Mark.mendola@ssa.gov

Certificate of Service

Case 3:16-cv-00126-JTR Document 16-8 Filed 08/14/17 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION __________________________________ SHANNON WAYNE KENDER, Plaintiff, 3:16-cv-00126-JTR v. Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ CERTIFICATE OF SERVICE I certify that I have electronically served the Notice of Motion, supporting affirmation and attached exhibits and Memo of Law for an EAJA application with the Clerk of the District Court using the CM/ECF system, which sent notification of such filing to: To: Mark J. Mendola, Esq. Special Assistant U.S. Attorney Eastern District of Arkansas Massachusetts Bar No. 671052 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202 Phone: 214-767-4706 Fax: 214-767-4228 Email: Mark.mendola@ssa.gov August 14, 2017/s/Howard D. Olinsky Howard D. Olinsky, Esq.

RESPONSE in Opposition re [15] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Social Security Administration.

Case 3:16-cv-00126-JTR Document 17 Filed 08/23/17 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION SHANNON WAYNE KENDER, § Plaintiff, § § v. § CIVIL ACTION 3:16-CV-00126-JTR § NANCY A. BERRYHILL, 1 § Acting Commissioner of Social Security, § Defendant. § DEFENDANT’S PARTIAL OPPOSITION TO PLAINTIFF’S NOTICE FOR MOTION FOR ATTORNEY’S FEES PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT Defendant, Nancy A. Berryhill, the Acting Commissioner of Social Security (Commissioner), submits this memorandum in response to Plaintiff’s Motion for Attorney’s Fees Pursuant to the Equal Access to Justice Act (Motion) (#15). Defendant partially opposes Plaintiff’s request for fees under the Equal Access to Justice Act (EAJA), maintaining that any award should be no greater than $5,736.61 in fees, along with $55.18 in expenses. ISSUE Whether Plaintiff’s request for attorney’s fees is reasonable. STATEMENT OF AUTHORITIES The EAJA allows an award of reasonable attorney’s fees and other expenses against the government provided that: 1. The party seeking such fees is the "prevailing party" in a civil action brought by or against the United States; 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Case 3:16-cv-00126-JTR Document 17 Filed 08/23/17 Page 2 of 4 2. An application for such fees, including an itemized justification for each amount requested, is timely filed within thirty days of the final judgment in the action; 3. The position of the government is not "substantially justified"; and 4. No special circumstances make such an award unjust. The absence of any of the above factors shall preclude an award of fees. See 28 U.S.C. § 2412(d)(1)(A), (B), & (2)(A). The amount of fees awarded shall be based upon the prevailing market rates for the kind and quality of services furnished, except that attorney’s fees will not be awarded in excess of $125.00 per hour unless the court finds that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. See 28 U.S.C. § 2412(d)(2)(A). ARGUMENT This case is before this Court on Plaintiff’s request for $6,526.61 in EAJA fees and costs of $55.18 in expenses as compensation for his counsel performing 29.9 hours of legal work at an hourly rate of $191.86 and paralegals performing 7.9 hours of work at a rate of $100. The Commissioner does not object to the proposed hourly rates or Plaintiff’s request for expenses. However, the Commissioner objects to the amount of EAJA fees requested. The EAJA allows fee reimbursement to a prevailing party only for "reasonable fees and expenses." See 28 U.S.C. §2412(b). The party seeking an award of fees has the burden of showing that the fees sought are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). The amounts claimed in a list of itemized services are not controlling, and in its sound discretion a court may reduce both the requested time and the requested hourly rate based upon such factors as the complexity of the case, the type of work performed, and the expertise the 2 Case 3:16-cv-00126-JTR Document 17 Filed 08/23/17 Page 3 of 4 work required. See Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950-51 (1st Cir. 1984). Furthermore, clerical tasks are not compensable under the EAJA. See Granville House, Inc. v. Dep’t of HEW, 813 F.2d 881, 884 (8th Cir. 1987) (holding work that could have been completed by support staff not compensable under EAJA). In Hensley v. Eckerhart, the Supreme Court directed district courts to exclude from a fee calculation "hours that were not'reasonably expended.’" Hensley, 461 U.S. at 434. Specifically, the Court stated: Counsel for the prevailing party should make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private practice is ethically obligated to exclude such hours from his fee submission. Id. Here, Plaintiff seeks compensation for numerous clerical tasks performed by paralegals. However, clerical or secretarial tasks "should not be billed at a paralegal rate regardless of who performs them." Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989); see also Granville House, 813 F.2d at 884 (work that could be completed by support staff not compensable under EAJA). Specifically, counsel’s paralegals appear to have performed exclusively clerical tasks and no substantive work at all. See dkt. #16-4, at p.2. Consequently, all 7.9 paralegal hours should be stricken from the fee request, resulting in a total reduction by $790, given the requested $100 paralegal rate. Jenkins, 491 U.S. at 288 n. 10; Granville House, 813 F.2d at 884; Duhon v. Colvin, No. 4:12-CV-00439-JTK, 2013 WL 1934035, at *1 (E.D. Ark. May 9, 2013) (unpublished) (striking clerical entries from EAJA request). Consequently, the Commissioner suggests that, should the Court award a fee, it award a fee of no more than $5,736.61, reflecting a subtraction of the $790 attributable to 10 hours of billed paralegal time. 3 Case 3:16-cv-00126-JTR Document 17 Filed 08/23/17 Page 4 of 4 CONCLUSION For the reasons given, the Commissioner requests that any EAJA award be no greater than $5,736.61, along with $55.18 in expenses. Respectfully submitted, PATRICK C. HARRIS Acting United States Attorney Eastern District of Arkansas STACEY E. McCORD Assistant U.S. Attorney Eastern District of Arkansas TRACI B. DAVIS Acting Regional Chief Counsel Social Security Administration/s/Mark J. Mendola Mark J. Mendola Special Assistant United States Attorney Eastern District of Arkansas Massachusetts Bar No. 671052 Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202-5433 Phone: (214) 767-4706 Fax: (214) 767-4228 Mark.mendola@ssa.gov CERTIFICATE OF SERVICE I hereby certify that on August 23, 2017, I electronically transmitted the attached document to the Clerk of the Court using the ECF’s system for filing and transmittal to Plaintiff’s attorney, Howard David Olinsky, an ECF registrant./s/Mark J. Mendola Mark J. Mendola Special Assistant United States Attorney 4

ORDER granting [15] Motion for Attorney Fees and Expenses in the amount of $5,886.61. Signed by Magistrate Judge J. Thomas Ray on 8/28/17.

Case 3:16-cv-00126-JTR Document 18 Filed 08/28/17 Page 1 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION SHANNON WAYNE KENDER PLAINTIFF V. NO. 3:16-CV-00126-JTR NANCY A. BERRYHILL, Acting Commissioner, SOCIAL SECURITY ADMINISTRATION DEFENDANT ORDER Before the Court is Plaintiff Shannon Wayne Kender’s Motion for Attorney’s Fees and Expenses under the Equal Access to Justice Act ("EAJA"). Doc. 15. The Commissioner partially opposes Kender’s motion. Doc. 17. Plaintiff’s attorney, Howard D. Olinsky, requests a total award of $6,581.79. The request includes $6,526.61 in attorneys’ fees (computed based on 29.9 hours of attorney time at an hourly rate of $191.86 and 7.9 hours of paralegal time at an hourly rate of $100.00) and expenses of $55.18. The Commissioner agrees to the requested expenses, but asserts that the fee award should be reduced to $5,736.61. For cause, the Commissioner argues that the requested paralegal time should be stricken because it all relates to clerical or secretarial tasks. The Court agrees in part. Of the $790 requested for 10 hours of billed paralegal time, the Court awards 1 Case 3:16-cv-00126-JTR Document 18 Filed 08/28/17 Page 2 of 2 $150, representing 1.5 hours of paralegal time for "EAJA preparation," but declines to make any other award.1 The Court concludes that Plaintiff is entitled to an award of attorney’s fees under the EAJA and that an award of $5,886.61 is reasonable. IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney’s Fees pursuant to the EAJA, doc. 15, is GRANTED. IT IS FURTHER ORDERED that Plaintiff is awarded $5,886.61 in fees under the EAJA.2 Dated this 28th day of August, 2017. ____________________________________ UNITED STATES MAGISTRATE JUDGE 1 See Doc. 16-4 at pp. 2-3 (requesting paralegal reimbursement for receiving files, saving and distributing files and court documents, and other clerical type work). 2 Consistent with the Commissioner’s usual procedure in light of Astrue v. Ratliff, 560 U.S. 586 (2010), the check awarding EAJA fees should be made payable to Plaintiff, but mailed to the Plaintiff in care of Plaintiff’s attorney at the attorney’s office. 2

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Description
1
05/12/2016
MOTION for Leave to Proceed in forma pauperis by Shannon Wayne Kender.
2
05/12/2016
COMPLAINT against Social Security Administration, filed by Shannon Wayne Kender.
1
Exhibit A
2
https://ecf.ared.uscourts.gov/doc1/02713790046" onClick="goDLS{{'/doc1/02713790046','103661','10','','2','0','',''}};">2</a> Civil Cover Sheet)
2 Attachments
3
07/08/2016
ORDER granting 1 Motion for Leave to Proceed in forma pauperis. The Clerk is directed to file and docket the complaint without prepayment of fees and costs or security therefor, and issue summons. Signed by Magistrate Judge J. Thomas Ray on 7/8/2016.
07/08/2016
Summons Issued as to Social Security Administration, U.S. Attorney and U.S. Attorney General. Forwarded to Plaintiff's counsel for service. (Text entry; no document attached.)
4
08/07/2016
CONSENT to Jurisdiction by U.S. Magistrate Judge. Case reassigned to Magistrate Judge J. Thomas Ray. Signed by Judge D. P. Marshall Jr. on 8/7/2016.
5
08/17/2016
SUMMONS Returned Executed by Shannon Wayne Kender. Social Security Administration served on 8/1/2016.
6
08/26/2016
NOTICE of Appearance by Eric B. Tucker on behalf of Social Security Administration
7
09/28/2016
ANSWER to 2 Complaint by Social Security Administration.
8
09/28/2016
NOTICE by Social Security Administration of conventional filing of the administrative transcript
9
09/28/2016
SCHEDULING ORDER: Plaintiff's Brief due by 11/10/2016; Defendant must file a brief within 42 days of the date Plaintiff's Brief is served. Signed by Magistrate Judge J. Thomas Ray on 9/28/16.
10
09/28/2016
(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry) ADMINISTRATIVE TRANSCRIPT of proceedings re 7 Answer to Complaint and 8 Notice (Other). Document received in paper and maintained in the Clerk's office. (Documents w/restricted access added on 9/28/2016).
11
11/10/2016
PLAINTIFF'S BRIEF filed by Shannon Wayne Kender. Defendant Brief due by 12/27/2016
1
Certificate of Service
1 Attachment
12
12/22/2016
DEFENDANT'S BRIEF filed by Social Security Administration.
13
05/18/2017
ORDER the ALJ's decision is reversed and remanded with instructions to further develop the record as necessary and to give explicit consideration to the VA determination. Signed by Magistrate Judge J. Thomas Ray on 5/18/17.
14
05/18/2017
JUDGMENT pursuant to the Order entered on this date it is ordered that the final decision of the Commissioner is reversed and this case is remanded for proceedings specified in the Court's Order [13]. Signed by Magistrate Judge J. Thomas Ray on 5/18/17.
15
08/14/2017
First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 by Shannon Wayne Kender
16
08/14/2017
AFFIDAVIT in Support re [15] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Shannon Wayne Kender.
1
Exhibit A CPI Table
2
Exhibit B All Professional Time
3
Exhibit C Attorney Time
4
Exhibit D Paralegal Time
5
Exhibit E Expenses
6
Exhibit F Affirmation and Waiver of Direct Payment of EAJA Fees
7
Memorandum In Support
8
Certificate of Service
8 Attachments
17
08/23/2017
RESPONSE in Opposition re [15] First MOTION for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C Sect. 2412 filed by Social Security Administration.
18
08/28/2017
ORDER granting [15] Motion for Attorney Fees and Expenses in the amount of $5,886.61. Signed by Magistrate Judge J. Thomas Ray on 8/28/17.
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